National Council on Disability

February 7, 2018

IDEA Series

Federal Monitoring and 

Enforcement of IDEA 

Compliance
National Council on Disability (NCD)

1331 F Street NW, Suite 850

Washington, DC 20004

(IDEA Series) Federal Monitoring and Enforcement of IDEA Compliance

National Council on Disability, February 7, 2018 

Celebrating 30 years as an independent federal agency

This report is also available in alternative formats. Please visit the National Council on Disability 

(NCD) website (www.ncd.gov) or contact NCD to request an alternative format using the following 

information:

ncd@ncd.gov Email

202-272-2004 Voice

202-272-2022 Fax

The views contained in this report do not necessarily represent those of the Administration, as this and 

all NCD documents are not subject to the A-19 Executive Branch review process.
Letter of Transmittal

February 7, 2018

President Donald J. Trump

The White House

1600 Pennsylvania Avenue NW

Washington, DC 20500

Dear Mr. President:

On behalf of the National Council on Disability (NCD), I am pleased to submit this report titled 

Federal Monitoring and Enforcement of IDEA Compliance. This report is part of a five-report series 

on the Individuals with Disabilities Education Act (IDEA) that examines the history and current 

process of federal monitoring and enforcement of IDEA, the role of the U.S. Department of 

Education’s Office for Civil Rights (OCR), the U.S. Department of Justice (DOJ), and IDEA’s options 

for resolving disputes and addressing systemic violations.

As you know, the right of students with disabilities to receive a free and appropriate public 

education in the least restrictive environment is solidly rooted in the guarantee of equal protection 

under the law granted to all citizens under the Constitution. NCD has voiced concerns over 

federal monitoring and enforcement of IDEA in multiple reports since 1995. Some significant 

concerns included OCR’s lack of enforcement complaint referrals to DOJ; DOJ’s lack of authority 

to investigate and litigate IDEA cases; the Department of Education’s continued funding to school 

systems that were noncompliant with IDEA; and a lack of funding for enforcement, complainthandling, and technical assistance. NCD also reported that the lack of national compliance 

standards for IDEA hindered enforcement efforts, and recommended that the Department of 

Education (ED) and DOJ develop standards, improvement measures, and enforcement sanctions 

triggered by specific actions indicating a state’s failure to ensure implementation of IDEA.

The research in this report provides up-to-date information on the issues that NCD identified in its 

previous IDEA reports, describes federal actions taken to address the issues and progress made, and 

gives recommendations for the improvement of the federal monitoring and enforcement scheme.

NCD stands ready to assist the Administration in ensuring the right to a free and appropriate public 

education for students with disabilities as set forth in IDEA.

Respectfully,

Clyde E. Terry

Chairperson

National Council on Disability

An independent federal agency making recommendations to the President and Congress 

to enhance the quality of life for all Americans with disabilities and their families.

1331 F Street, NW ■ Suite 850 ■ Washington, DC 20004

202-272-2004 Voice ■ 202-272-2074 TTY ■ 202-272-2022 Fax ■ www.ncd.gov

(The same letter of transmittal was sent to the President Pro Tempore of the U.S. Senate and the Speaker of 

the U.S. House of Representatives.)
2 National Council on Disability
National Council on Disability Members and Staff

Members

Clyde E. Terry, Chairperson

Benro T. Ogunyipe, Vice Chairperson

Billy W. Altom

Rabia Belt

James T. Brett

Bob Brown

Daniel M. Gade

Wendy S. Harbour

Neil Romano

Staff

Vacant, Executive Director

Joan M. Durocher, General Counsel & Director of Policy

Amy Nicholas, Attorney Advisor

Amged Soliman, Attorney Advisor

Ana Torres-Davis, Attorney Advisor

Anne Sommers, Director of Legislative Affairs & Outreach

Phoebe Ball, Legislative Affairs Specialist

Lisa Grubb, Director of Operations and Administration

Stacey S. Brown, Staff Assistant

Keith Woods, Financial Management Analyst

Federal Monitoring and Enforcement of IDEA Compliance 3
4 National Council on Disability
Acknowledgments

NCD thanks Selene Almazon, Denise Marshall, and Melina Latona of the Council of Parent Attorneys 

and Advocates, and Candace Cortiella of The Advocacy Institute, for the research conducted in 

developing this report.

Federal Monitoring and Enforcement of IDEA Compliance 5
6 National Council on Disability
Contents

Acknowledgments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  

Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  

Executive Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  

Monitoring . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  

Office of Special Education Programs (OSEP) Oversight . . . . . . . . . . . . . .  

Acronym Glossary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  1

Research Methods . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  1

Qualitative Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Policy Analysis and Literature Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Quantitative Data . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Limitations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  1

Chapter 1: Examining the Federal Role in Education . . . . . . . . . . . . . . . . . . . . . . . . . .  1

Section 504...

The ADA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  1

Chapter 2: Evolution of Monitoring and Enforcement Under IDEA . . . . . . . . . . . . . . . 19

Chapter 3: Department of Education’s Current Process . . . . . . . . . . . . . . . . . . . . . . . .  2

OSEP Annual State Determinations 2007–2017 . . . . . . . . . . . . . . . . . . . . .  2

Chapter 4: State Monitoring of Local Educational Agencies (LEAs) . . . . . . . . . . . . . .  3

Lack of Comprehensive Information about State 

Monitoring Practices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  3

Chapter 5: IDEA Dispute Resolution Options . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  3

Chapter 6: Role of the Office for Civil Rights (OCR) . . . . . . . . . . . . . . . . . . . . . . . . . . .  3

Chapter 7: Role of the Department of Justice (DOJ) . . . . . . . . . . . . . . . . . . . . . . . . . . .  4

Federal Monitoring and Enforcement of IDEA Compliance 7
Chapter 8: Perspectives of Key Stakeholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  4

Current Monitoring and Enforcement of IDEA Compliance . . . . . . . . . . .  4

IDEA Dispute Resolution Options . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  4

Chapter 9: Findings and Recommendations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  4

Monitoring . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  4

Office of Civil Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  4

OSEP Oversight . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  4

IDEA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  4

Recommendations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  4

Endnotes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  5

8 National Council on Disability
T

he Individuals with Disabilities 

Education Act (IDEA) confers significant 

responsibilities for its implementation to 

the U.S. Department of Education (ED). Through 

a complex system of monitoring, ED reviews and 

reports on states’ IDEA implementation annually. 

The system has undergone several changes over 

the years.

To better understand the current system of 

IDEA monitoring and enforcement, the National 

Council on Disability (NCD) commissioned 

this report. Using a mixed-methods study, key 

questions were used to examine the history and 

current process of IDEA federal monitoring and 

enforcement, the role of other agencies such as 

the Office for Civil Rights and the U.S. Department 

of Justice (DOJ), and IDEA’s options for resolving 

disputes and addressing systemic violations.

In this report, NCD found the current system 

of monitoring and enforcement, while moving 

toward a more balanced approach of compliance 

and results, often fails to address noncompliance 

in a timely and effective manner, and utilize all 

of the options available to address issues. The 

following are some key findings.

Monitoring

IDEA does not impose a specific monitoring 

framework on states; however, the system should 

be accountable for enforcing IDEA requirements 

and for ensuring continuous improvement.

Office of Special Education Programs 

(OSEP) Oversight

OSEP and the Office of Special Education and 

Rehabilitative Services (OSERS) regularly issue 

Dear Colleague Letters and Memorandums to 

address issues, including violations of IDEA that 

appear to be systemic.

The report makes recommendations to 

Congress, ED, and states. Among these 

recommendations are the following:

■ Congress should appropriate funds for 

competitive grants to develop and pilot 

effective monitoring and enforcement 

activities that improve results and correct 

noncompliance in a timely manner.

■ ED should engage in more aggressive 

enforcement of IDEA, and utilize its authority 

to withhold federal funds and make referrals 

to DOJ for enforcement as permitted by IDEA.

■ States should fully adhere to the requirement 

to make public all information regarding local 

educational agency (LEA) monitoring and 

enforcement of IDEA compliance, including 

LEA annual performance reports (APRs), 

annual determinations, corrective actions 

ordered, and funding withheld; and develop 

user-friendly, easily locatable information 

in collaboration with parents and other 

stakeholders in the state.

Executive Summary

Federal Monitoring and Enforcement of IDEA Compliance 9
10 National Council on Disability
Acronym Glossary

ADA Americans with Disabilities Act of 1990

APR annual performance report

CDE California Department of Education

CIMP Continuous Improvement Monitoring Process

CPRC Community Parent Resource Center

CRDC Civil Rights Data Collection

COPAA Council of Parent Attorneys and Advocates

DCL Dear Colleague Letter

DOJ U.S. Department of Justice

ED U.S. Department of Education

EL English learner

ESE Massachusetts Department of Elementary and Secondary Education

ESEA Elementary and Secondary Education Act

ESSA Every Student Succeeds Act

FAPE free appropriate public education

GAO Government Accountability Office

GEPA General Education Provisions Act

GNETS Georgia Network for Educational and Therapeutic Support

IDEA Individuals with Disabilities Education Act

IEP Individualized Education Program

LEA local educational agency

LRE least restrictive environment

NCD National Council on Disability

NCSI National Center for Systemic Improvement

OCR Office for Civil Rights

OSEP Office of Special Education Programs

OSERS Office of Special Education and Rehabilitative Services

P&A Protection and Advocacy

PTI parent training information center

RDA Results Driven Accountability

SEA state educational agency

SPP state performance plan

SSIP state systemic improvement plan

TEA Texas Education Authority

Federal Monitoring and Enforcement of IDEA Compliance 11
“For too long we’ve been a compliancedriven bureaucracy when it comes to 

educating students with disabilities. 

We have to expect the very best from 

our students—and tell the truth about 

student performance—so that we can give 

all students the supports and services 

they need. The best way to do that is by 

focusing on results.”

—Arne Duncan, Former Secretary, 

U.S. Department of Education 

12 National Council on Disability
I

n 1995, 20 years after the passage of the 

Individuals with Disabilities Education Act 

(IDEA),1 the National Council on Disability 

(NCD) released a report in which one of the key 

findings was “that the majority of problems 

which have occurred in special education have 

not been the result of problems with the law 

itself, but with its implementation.”2 Yet again, 

in its 2000 report, Back to School for Civil 

Rights, NCD discovered that IDEA was not 

being implemented as intended, finding that the 

Federal Government was not doing enough to 

force states to comply with federal law on special 

education, and as a result, many children with 

disabilities were getting substandard schooling.3

This report examines the findings in previous 

NCD reports, the progress achieved since the 

last report 16 years ago, and the evolution of 

monitoring practices and current practices by the 

U.S. Department of Education (ED), and it seeks 

to answer the following questions:

■ How does the IDEA complaint process differ 

in investigation and enforcement?

■ Has ED developed standards, improvement 

measures, and enforcement sanctions 

triggered by specific actions indicating a 

state’s failure to ensure implementation of 

the law?

■ Does ED make complaint referrals to the 

Department of Justice (DOJ) when lack of 

compliance is found?

■ Does DOJ seek remedies in referred 

complaints?

■ Does ED continue to fund school 

systems that are noncompliant with IDEA 

requirements?

■ Has funding increased for IDEA 

enforcement, complaint handling, and 

technical assistance?

■ Have national compliance standards for 

IDEA been developed by ED and DOJ?

Research Methods

To address these questions, NCD conducted 

a mixed-methods study gathering stakeholder 

perspectives, as well as policy and quantitative 

information. The research questions 

provided a basis for analysis of the history, 

trends, and current status of federal law—

authorizing and appropriations; examination 

of available research and descriptive data; 

and consideration from the experiences of 

stakeholders—parents, school personnel, 

district and state officials or their national 

organizations, and ED officials.

Introduction

Federal Monitoring and Enforcement of IDEA Compliance 13
Qualitative Analysis

To gather stakeholder perspectives, the NCD 

research team conducted interviews, and held 

four regional forums and one national forum. 

Specifically, NCD conducted 20 semistructured 

interviews with ED officials, state and local 

administrators, researchers, representatives 

from disability rights organizations, and parent 

organizations to determine current challenges 

related to the funding of IDEA.

In the second phase of research, we gathered 

perspectives from parents and students through 

four regional focus groups in California, Illinois, 

Texas, and Virginia. NCD recruited participants 

through the Council of Parent Attorneys and 

Advocates (COPAA)’s member network, local 

parent networks, and state and national partners in 

the forum locations. In total, 72 people participated 

in the regional forums. Only 30 percent of regional 

forum participants were COPAA members, and 

70 percent were non-COPAA members. Of the 

72 participants in the regional forum, 38 percent 

were parents or students of color.

The third phase of data collection occurred 

during an online forum at COPAA’s national 

conference. In total, 58 people participated in 

the forum. Twenty-three percent were people of 

color. An additional 23 people responded through 

an email address.4

In all settings, NCD used a semistructured 

question protocol to gain perspectives about 

parent and child experiences with IDEA. Data 

was recorded and transcribed to identify themes 

among the experiences (see appendix for 

protocols).

Policy Analysis and Literature 

Review

To understand the policy context, we conducted 

a thorough review of current policy on the issue 

of IDEA federal monitoring, examining specifically 

any relevant statute, regulations, or guidance on 

the topic.

Quantitative Data

In our quantitative review, NCD gathered 

descriptive statistics and reviewed data from 

the IDEA annual reports to Congress, annual 

determinations of state implementation of IDEA, 

Research Questions Addressed 

in Report

■ How does the IDEA complaint process 

differ in investigation and enforcement?

■ Has ED developed standards, improvement 

measures, and enforcement sanctions 

triggered by specific actions indicating a 

state’s failure to ensure implementation of 

the law?

■ Does ED make complaint referrals to the 

Department of Justice (DOJ) when lack of 

compliance is found?

■ Does DOJ seek remedies in referred 

complaints?

■ Does ED continue to fund school 

systems that are noncompliant with IDEA 

requirements?

■ Has funding increased for IDEA 

enforcement, complaint handling, and 

technical assistance?

■ Have national compliance standards for 

IDEA been developed by ED and DOJ?

14 National Council on Disability
state performance plans (SPPs) and annual 

performance reports (APRs), and other relative 

data, as well as other available national datasets. 

This quantitative review helps to provide an 

overarching picture of the topic nationally and 

enhances the individual perspectives gathered 

from the qualitative components.

Limitations

In this study, NCD recruited participants 

through COPAA’s member network; local parent 

networks; and state and national partners in the 

forum locations. Additionally, we purposefully 

selected interview participants based on location 

and position. Therefore, the qualitative data 

identified in the report should not be viewed 

as generalizable, but rather as perspectives of 

individuals within those positions. The qualitative 

data offers individual first-person perspectives 

to complement the quantitative aspects of 

this report.

Federal Monitoring and Enforcement of IDEA Compliance 15
16 National Council on Disability
Chapter 1: Examining the Federal Role in Education

T

hree federal laws protect students with 

disabilities: Individuals with Disabilities 

Education Act (IDEA), Section 504 of the 

Rehabilitation Act of 1973,5 and the Americans 

with Disabilities Act of 1990 (ADA).6

Among these, only IDEA provides federal 

funds to assist states and local educational 

agencies with the additional costs of special 

education and related services. States must 

provide a free appropriate public education 

(FAPE) to all children with disabilities as a 

condition of receiving federal IDEA funds. Thus, 

IDEA is both a grants 

statute and a civil rights 

statute. IDEA includes 

monitoring activities and 

procedural safeguards 

as mechanisms for ensuring compliance with 

the statute’s extensive requirements. The 

monitoring activities are overseen by the Office 

of Special Education Programs (OSEP) at the U.S. 

Department of Education. IDEA also requires 

states to provide an administrative complaint 

process that must be carried out by each state 

educational agency (SEA). IDEA is also closely 

interwoven with Every Student Succeeds Act 

(ESSA),7 the current version of the Elementary 

and Secondary Education Act (ESEA).

Section 504

Section 504 of the Rehabilitation Act of 1973, 

as it applies to students with disabilities, is a 

federal law designed to protect the rights of 

people with disabilities in programs and activities 

that receive federal financial assistance from 

ED. In terms of students and their education, 

it prohibits schools from discriminating against 

students with disabilities and to provide students 

with disabilities appropriate educational services. 

These services must be designed to meet the 

individual educational needs of students with 

disabilities to the same 

extent that the needs 

of students without 

disabilities are met. The 

Office for Civil Rights 

(OCR) at ED enforces Section 504, receiving and 

investigating complaints from parents, students, 

or advocates. OCR conducts agency-initiated 

compliance reviews and provides technical 

assistance to school districts, parents, and 

advocates. OCR provides guidance through Dear 

Colleague Letters (DCLs) and supplementary 

materials. Guidance is often issued jointly by 

OCR and the Civil Rights Division of DOJ or the 

Office of Special Education and Rehabilitative 

Services (OSERS).

IDEA is both a grants statute and a 

civil rights statute.

Federal Monitoring and Enforcement of IDEA Compliance 17
Disagreements between parents and school 

districts can be pursued through Section 

504 due process hearings. OCR offers an 

early complaint resolution process, as well 

as an appeals process for complainants. 

OCR attempts to reach compliance through 

negotiation of a corrective action agreement. 

Resolution letters and agreements are made 

available to the public. If OCR is unable to 

achieve voluntary 

compliance, OCR might 

initiate enforcement 

action. OCR might 

(1) initiate administrative 

proceedings to terminate 

ED financial assistance 

to the recipient, or 

(2) refer the case to DOJ 

for judicial proceedings.8

The ADA

ADA Title II prohibits discrimination on the basis 

of disability by state and local governments 

regardless of whether they receive federal 

financial assistance.

Like Section 504, in Title II of ADA, Congress 

prohibited discrimination by public entities. Title II 

goes beyond Section 504—it applies to state and 

local schools regardless of whether they receive 

any federal funds, while Section 504 applies only 

to schools that receive federal funds. Because 

public schools receive federal funds, they are 

subject to the requirements of both Title II of 

ADA and Section 504.

Unlike IDEA, however, 

the scope of Section 504 

and ADA is much 

broader, particularly for 

specific disability-related 

areas. In fact, ADA 

includes a mandate to 

eliminate discrimination 

against people with 

disabilities, and it required DOJ to promulgate 

regulations to implement ADA to that end.9

Thus, while IDEA might set the “basic floor of 

opportunity,”10 ADA/504 might require more.

The rights of students under Title II of ADA are 

enforced by OCR at ED in essentially the same 

manner as Section 504.

[Title II of the ADA] applies to state 

and local schools regardless of 

whether they receive any federal 

funds, while Section 504 applies 

only to schools that receive federal 

funds.

18 National Council on Disability
Chapter 2: Evolution of Monitoring and Enforcement 

Under IDEA

I

DEA specifies that IDEA’s monitoring and 

enforcement responsibilities are charged 

to the Secretary of the U.S. Department 

of Education, as well as to state educational 

agencies (SEAs). The Secretary exercises his 

or her authority through ED’s OSEP and OCR. 

States receiving IDEA federal funds must have 

a system of general supervision that monitors 

the implementation of IDEA by local educational 

agencies (LEAs) (i.e., school districts). IDEA does 

not impose a specific monitoring framework 

on states; however, the system should be 

accountable for enforcing IDEA requirements and 

for ensuring continuous improvement.11

Monitoring initially involved an on-site visit 

every five to six years. Such visits included 

stakeholder interviews, reviews of policies and 

procedures, and review of student files. The state 

would receive a letter from OSEP summarizing 

the findings of the visit and direction on how 

the state should address any findings of 

noncompliance.12

Driven in part by the recognition that 

this approach to monitoring was not leading 

to improved performance of children with 

disabilities, states and OSEP began shifting to 

a concept called “focused monitoring” in the 

late 1990s.13 The 1997 amendments to IDEA 

required states to develop performance goals 

and indicators that would be used to judge the 

states’ progress in improving results for students 

with disabilities.14 These requirements lead to a 

new monitoring approach called a Continuous 

Improvement Monitoring Process (CIMP).15

OSEP conceptualized the CIMP model as a 

continuous cycle composed of the following 

activities:

■ Self-assessment

■ Validation planning

■ Validation data collection

■ Improvement planning

■ Implementation of improvement strategies

■ Verification and consequences

■ Review and revision of self-assessment

OSEP used CIMP to monitor states from the 

1998–1999 through 2001–2002 school years. 

There was no requirement, however, that states 

adopt this approach in monitoring LEAs. States 

were required to develop state improvement 

plans based on the findings of a self-assessment. 

OSEP provided technical assistance to help 

states implement improvement strategies, 

regardless of whether the states used CIMP 

or another approach to monitor their local 

programs’ compliance. If a state did not make the 

necessary improvements, OSEP could impose 

enforcement actions such as special conditions 

Federal Monitoring and Enforcement of IDEA Compliance 19
on grant awards, compliance agreement, or 

withholding of funds.16

OSEP modified certain aspects of CIMP 

in 2000, in part because of an NCD report 

that concluded that every state in the country 

was out of compliance with IDEA.17 The NCD 

report, Back to School on Civil Rights, analyzed 

the data contained in DOJ’s state monitoring 

reports from 1975 to 1998, and concluded the 

following:

All states and the District of Columbia were 

found to be out of compliance with IDEA 

requirements to some degree. Federal 

efforts over several 

administrations to 

enforce IDEA in states 

where noncompliance 

persists were found 

to be inconsistent, 

often ineffective, 

and without any real 

teeth. While the statutory framework of 

IDEA envisioned states as the primary 

implementers of IDEA, the Federal 

Government has fallen short over five 

administrations in its efforts to ensure 

that the protections of the law for children 

with disabilities are enforced. This study 

confirmed what students with disabilities 

and their parents have repeatedly told 

NCD and that while they are enthusiastic 

supporters of IDEA, noncompliance with 

the law has persisted in some states over 

many years, placing enormous burdens on 

children and families.18

In 2002, the President’s Commission on 

Excellence in Special Education issued an 

extensive report that included recommendations 

regarding federal regulations and monitoring. The 

commission found that

[t]here is little demonstrable link between 

process compliance and student results 

and success. While process compliance 

two decades ago allowed the federal 

government to determine whether children 

with disabilities received any education 

services, then and now it does little to 

help parents and teachers judge whether 

those services lead to student success. 

Indeed, the complaints by NCD, witnesses 

and the public about the lack of historic 

compliance with 

IDEA beg the more 

fundamental question 

of whether such 

procedural compliance 

has anything to do 

with actual student 

achievement and 

their post-school success. To answer 

these problems, the Commission 

recommends that IDEA, its regulations 

and federal and state monitoring activities 

be fundamentally shifted to focus on 

results and accountability for scientifically 

based services, and their continuous 

improvement.19

The commission also found that it took 

between four and 20 months for OSEP to issue a 

monitoring report following the conclusion of the 

on-site visit, with an average of 13.6 months, and 

concluded that “[b]ecause of the substantial time 

between on-site monitoring and the release of 

reports, most reports are impractical and provide 

no assurance to Congress or families of the 

status of IDEA implementation.20

OSEP modified certain aspects of 

CIMP in 2000, in part because of 

an NCD report that concluded that 

every state in the country was out 

of compliance with IDEA.

20 National Council on Disability
The commission’s final report made the 

following recommendation regarding monitoring: 

“The U.S. Department of Education should seek 

to radically change how it conducts technical 

assistance and monitoring activities to focus 

on results instead of process. The Department 

should monitor and provide effective technical 

assistance on a much smaller number of 

substantive measures guided by broad federal 

standards that focus on performance and 

results.”21

Also in 2002, the U.S. Commission on Civil 

Rights offered its recommendations for the 

upcoming reauthorization of IDEA. On the subject 

of monitoring and enforcement, it recommended 

the following:

A complaint-handling process should be 

established at the federal level, and state 

complaint systems should be monitored by 

OSEP for efficiency and effectiveness. . . . 

The Federal Government must ensure that 

state special education programs comply 

with IDEA by gathering adequate data on 

each state’s implementation and developing 

national compliance standards.22

ED should exercise its authority to sanction 

state and local education agencies that 

repeatedly fail to comply with IDEA by 

withholding allotments until compliance 

is achieved. To accomplish this, ED must 

conduct regular and thorough reviews of 

how states are spending federal funds. The 

amount of funds withheld should be based 

on level of noncompliance, and sanctions 

should be applied equally to all states.

Compliance is best achieved through 

consistent federal enforcement bolstered by 

support activities performed by states. . . . 

[S]tates should be given the same sanction 

authority as federal enforcement agencies 

to ensure that local special education 

programs comply with IDEA. States should 

scrutinize school district expenditures and 

allocate or withhold funds accordingly.”23

A 2004 report by the Government 

Accountability Office, Special Education: 

Improved Timeliness and Better Use of 

Enforcement Actions Could Strengthen 

Education’s Monitoring System, echoed much 

of what the President’s Commission found. 

ED was again criticized for the length of time it 

took to issue monitoring reports and to approve 

corrective action plans. The report summarized 

these as follows:

Education has endeavored to bring 

states into compliance through state 

corrective action plans and technical 

assistance, but cases of noncompliance 

have generally continued for years before 

being fully resolved. To resolve the range 

of deficiencies Education identified in its 

monitoring visits, the department required 

states to (1) develop corrective action plans, 

(2) institute remedies, and (3) demonstrate 

the effectiveness of the remedy within 1 

year. We found that all of the 7 cases of 

noncompliance from 1997 to 2002 that have 

been fully resolved took from 2 to 6 years 

for closure to occur, and the remaining 23 

cases–some dating back as far as 1997–

have still not been completely resolved. . . . 

Our examination of Education documents 

showed that each phase of the monitoring 

and correction process took a considerable 

amount of time, including Education’s 

issuance of its findings report and the 

Federal Monitoring and Enforcement of IDEA Compliance 21
approval of the state correction plan. On 

average, Education took about a year to 

issue a monitoring report following its site 

visits, and generally 1 to 2 years passed 

before states’ corrective action plans were 

approved. Infrequently, in cases of serious 

or longstanding noncompliance, Education 

has taken more severe action by using 

sanctions such as making grant renewals 

conditional on correcting noncompliance, 

but resolution has been slow in these 

cases as well. In addition, states that we 

examined rarely resolved noncompliance 

within the 1-year compliance deadline 

specified by Education for correction.

The report recommended the following:

To improve special education monitoring, 

we are recommending that Education 

develop additional guidance for collecting 

data on key outcome measures. To 

strengthen enforcement of IDEA, we are 

recommending that Education improve 

its response times throughout the 

monitoring process and that it impose 

realistic timeframes and firm deadlines 

for remedying findings of noncompliance, 

including making greater use of compliance 

agreements when appropriate.24

Ultimately, the 2004 amendments to IDEA 

expanded requirements regarding performance 

goals and indicators, and included specifications 

for state performance plans, data collection, 

and reporting on targets. States had to develop 

an SPP that included indicators measuring 

compliance, as well as those measuring 

performances of students with disabilities. 

States were required to submit an APR, which 

became the primary component of OSEP’s state 

monitoring. OSEP also was required to initiate 

state on-site meetings over a five-year period to 

conduct “verifications visits.” Each year, OSEP 

issues to every state a “determination” of its 

implementation of IDEA using the following 

categories:

■ Meeting requirements and purposes of 

IDEA

■ Needing assistance in implementing the 

requirements of IDEA

■ Needing intervention in implementing the 

requirements of IDEA

■ Needing substantial intervention in 

implementing the requirements of IDEA

Section 616 of IDEA 2004 states: “The 

primary focus of Federal and State monitoring 

activities described in paragraph (1) shall be on—

(A) improving educational results and functional 

outcomes for all children with disabilities; and 

(B) ensuring that States meet the program 

requirements under this part with a particular 

emphasis on those requirements that are most 

closely related to improving educational results 

for children with disabilities.”

Despite this intended focus, monitoring using 

the SPP/APR data and information from on-site 

visits remained primarily focused on compliance 

rather than results. In response, states focused 

on correction of noncompliance. Not surprisingly, 

state performance on compliance indicators 

improved significantly while student performance 

remained relatively unchanged.25

22 National Council on Disability
Chapter 3: Department of Education’s Current Process

I

n 2012, after extensive input from stakeholders, 

and in an effort to improve the educational 

outcomes of students with disabilities, ED 

announced a major shift in the way OSEP would 

oversee the effectiveness of states’ special 

education programs. Until that time, OSEP’s 

primary focus was to determine whether states 

were meeting procedural requirements such as 

timelines for evaluations, due process hearings, 

and transitioning children into preschool services. 

While these compliance 

indicators remain 

important to children 

and families, under 

the revised framework 

known as Results Driven 

Accountability (RDA), 

OSEP now includes educational results and 

outcomes for students with disabilities in making 

each state’s annual determination under IDEA. 

In announcing RDA, the Secretary of Education 

said this:

For too long we’ve been a compliancedriven bureaucracy when it comes to 

educating students with disabilities. We 

have to expect the very best from our 

students—and tell the truth about student 

performance—so that we can give all 

students the supports and services they 

need. The best way to do that is by focusing 

on results.

ED also announced that it would cease to 

conduct verification visits, but would continue 

to review states’ APRs and monitor state 

supervision systems.26

As part of RDA, OSEP moved to 

“differentiated monitoring and support” for all 

states, but especially low-performing states. 

OSEP now provides 

differentiated technical 

assistance based on 

annual determinations, 

with low-performing 

states receiving more 

intensive support.27

In shifting to the RDA process for annual 

determinations, OSEP funded technical 

assistance centers to provide states help with 

data collection. The Center for IDEA Fiscal 

Reporting28 and the IDEA Data Center29 are two 

such centers. OSEP also has a system that flags 

state data that appears to be questionable, and 

verifies such data with the state.

OSEP also added a new indicator to the SPP 

in 2013. The new indicator required states to 

develop a State Systemic Improvement Plan 

(SSIP). An SSIP is a plan for improving results for 

students with disabilities. The basis for the SSIP 

OSEP now includes educational 

results and outcomes for students 

with disabilities in making each state’s 

annual determination under IDEA.

Federal Monitoring and Enforcement of IDEA Compliance 23
is a detailed data and infrastructure analysis 

that will guide the development of strategies 

to increase the state’s capacity to structure 

and lead meaningful change in LEAs. The SSIP 

has been implemented in stages, beginning 

with the APR submitted February 1, 2015.30 To 

assist states in the planning and implementation 

of the SSIP, OSEP 

funded a new technical 

assistance center 

known as the National 

Center for Systemic 

Improvement (NCSI). 

This center is charged 

with “helping states achieve a national vision 

of Results Driven Accountability for special 

education and early intervention programs.”31

OSEP began using the RDA process in making 

the Part B state determinations in June 2014. 

As the following chart indicates, the impact of 

the shift from a focus primarily on procedural 

compliance to consideration of both compliance 

and results made a significant difference in state 

ratings, with the percentage of states receiving 

a “meets requirements” rating declining 

substantially.

OSEP Annual State Determinations 

2007–2017

The following table provides information on the 

number of states identified in each determination 

category between 2007 

and 2017.

Annual determinations 

are based on data from 

the prior two years. 

For example, the 2016 

determinations were 

based on data for fiscal year 2014.

It should be noted that no state has ever been 

designated as “needing substantial intervention,” 

despite the fact that the Bureau of Indian 

Education has received a needs intervention 

determination for five consecutive years and 

the District of Columbia has received a needs 

intervention determination for 10 consecutive 

years. In other words, there appears to be no 

amount of ongoing noncompliance that rises to 

Number of States by Determination Category

Year Meets Requirements Needs Assistance Needs Intervention

2007 9 41 10

2008 14 36 10

2009 30 25 5

2010 31 27 2

2011 30 26 4

2012 33 18 9

2013 40 17 3

RDA/2014 21 34 5

RDA/2015 21 36 3

RDA/2016 26 31 3

RDA/2017 25 34 1

 [T]here appears to be no amount of 

ongoing noncompliance that rises 

to the level of [“needing substantial 

intervention”].

24 National Council on Disability
the level of this determination. This might be, 

at least in part, because of the specific actions 

the Secretary must take in the case of a state 

determined to need substantial intervention (see 

the following description).

Both IDEA law and regulations provide explicit 

actions the Secretary may or shall take for 

each determination category, as the following 

describes.32

Actions the Education Secretary May or Shall Take by Determination 

Category

Needs Assistance Category (for Two Consecutive Years)

The Secretary shall take one or more of the following actions:

■ Advises the state of available sources of technical assistance that may help the state 

address the areas in which it needs assistance, which may include assistance from 

OSEP, other offices of ED, other federal agencies, technical assistance providers 

approved by the Secretary, and other federally funded nonprofit agencies, and requires 

the state to work with appropriate entities. Such technical assistance may include the 

following:

❍ The provision of advice by experts to address the areas in which the state needs 

assistance, including explicit plans for addressing the area for concern within a specified 

period of time

❍ Assistance in identifying and implementing professional development, instructional 

strategies, and methods of instruction that are based on scientifically based research

❍ Designating and using distinguished superintendents, principals, special education 

administrators, special education teachers, and other teachers to provide advice, 

technical assistance, and support

❍ Devising additional approaches to providing technical assistance, such as collaborating 

with institutions of higher education, educational service agencies, national centers 

of technical assistance supported under Part D of the Act, and private providers of 

scientifically based technical assistance

■ Directs the use of state-level funds under section 611(e) of the Act on the area or areas in 

which the state needs assistance.

■ Identifies the state as a high-risk grantee and impose special conditions on the state’s 

grant under Part B of the Act.

(continued)

Federal Monitoring and Enforcement of IDEA Compliance 25
Needs Intervention Category (for Three or More Consecutive Years)

The Secretary can take any of the actions listed under Needs Assistance.

The Secretary shall take one or more of the following actions:

■ Requires the state to prepare a corrective action plan or improvement plan if the 

Secretary determines that the state should be able to correct the problem within 

one year

■ Requires the state to enter into a compliance agreement under section 457 of the 

General Education Provisions Act, as amended, 20 U.S.C. 1221 et seq. (GEPA), if 

the Secretary has reason to believe that the state cannot correct the problem within 

one year

■ For each year of the determination, withholds not less than 20 percent and not more 

than 50 percent of the state’s funds under section 611(e) of the Act, until the Secretary 

determines the state has sufficiently addressed the areas in which the state needs 

intervention

■ Seeks to recover funds under section 452 of GEPA

■ Withholds, in whole or in part, any further payments to the state under Part B of the Act

■ Refers the matter for appropriate enforcement action, which may include referral to the 

Department of Justice

Needs Substantial Intervention Category

Secretary shall take one or more of the following actions:

■ Recovers funds under section 452 of GEPA

■ Withholds, in whole or in part, any further payments to the state under Part B of the Act

■ Refers the case to the Office of the Inspector General at the Department of Education

■ Refers the matter for appropriate enforcement action, which may include referral to the 

Department of Justice 

Actions the Education Secretary May or Shall Take by Determination 

Category, continued

26 National Council on Disability
OSEP officials interviewed for this report33

indicated that the issue of a possible referral to 

DOJ for enforcement is raised when necessary 

in discussion with states that are not complying 

fully with their IDEA obligations. However, 

OSEP has not made any referrals to DOJ for 

enforcement under IDEA.

ED has not developed general standards, 

improvement measures, or enforcement 

sanctions beyond those specified in IDEA law 

and federal regulations. 

The SPP/APR module is 

publicly available online 

at osep.grads360.org 

and provides each state 

with information on OSEP’s response to the 

state’s performance on indicators one through 

17 of the SPP and any actions that the state 

is required to take. SEAs are required to make 

their SPP/APRs available to the public, primarily 

via posting online, and 

information regarding 

OSEP’s response to the 

APR makes it possible 

for interested parties to 

utilize the information, 

including specific 

corrective action the 

state is to undertake.

OSEP and OSERS regularly issue DCLs and 

Memorandums to address issues, including 

violations of IDEA that appear to be systemic. 

For example, recent DCLs addressed the use of 

the terms dyslexia, dyscalculia, and dysgraphia 

in IDEA evaluations, eligibility determinations 

or Individualized Education Program (IEP) 

documents; the requirement that schools provide 

positive behavioral supports to students with 

disabilities who need them; and the rights of 

students with disabilities to have access to the 

general education curriculum and standardsbased IEPs to ensure educational opportunity.34

While not carrying the force of law, these 

communications are valuable tools that can be 

used by parents, advocates, districts, schools, 

and states.35 In fact, the November 2015 DCL on 

standards-based IEPs served as the centerpiece 

of a resource document for states produced by 

the Council of Chief State School Officers and 

NCSI regarding how 

states can improve 

services to students with 

disabilities in the context 

of ESSA.36

OSEP also issues policy letters that are direct 

responses to requests for clarification on a variety 

of issues raised by parents, advocates, and 

school personnel. Again, while they do not carry 

the weight of law, these letters are helpful in 

providing clarification on 

specific circumstances 

that might not be directly 

addressed in IDEA law or 

federal regulations.37

OSEP utilizes other 

types of information 

beyond the states’ 

SPP/APR to monitor states and LEAs, including 

receiving multiple reports regarding the same 

LEA and reporting by the press. One recent 

example of this is the actions taken by ED in 

2016 with the Texas Education Authority (TEA). 

The Houston Chronicle asserted that TEA had 

placed a cap on the percentage of students 

that LEAs could identify as eligible for special 

education.38 Based on this reporting, OSEP 

demanded a formal response from TEA, held a 

series of “listening sessions” across Texas in 

OSEP has not made any referrals to 

DOJ for enforcement under IDEA.

ED has not developed general 

standards, improvement measures, 

or enforcement sanctions beyond 

those specified in IDEA law and 

federal regulations.

Federal Monitoring and Enforcement of IDEA Compliance 27
mid-December 2016, and performed monitoring 

visits to several Texas LEAs. While OSEP’s 

actions in this case are admirable, it should be 

noted that Disability Rights Texas, the state’s 

protection and advocacy agency, had reported the 

same concerns regarding the TEA policy to OSEP 

more than a year prior to the Houston Chronicle

reports, and no action was taken.

Another recent OSEP action was spurred 

by an opinion issued in 

2016 by a federal judge 

in Connecticut in an 

education funding case. 

In the decision, the 

judge suggested that 

children with multiple 

disabilities should not 

be given an education because no services 

would be “appropriate” for children with 

profound disabilities. OSEP issued a letter to 

the Connecticut State Department of Education, 

making it clear that all children are entitled to an 

education, regardless of their disability or the 

severity of the disability.39

OSEP does not 

provide a formal process 

through which to file 

a complaint regarding 

alleged violations of 

IDEA. While OSEP 

receives phone calls and 

written communications 

of complaints, how it handles these complaints 

is not directed by any formal process (unlike 

the written state complaint process detailed in 

IDEA federal regulations). This lack of a formal 

complaint process should be further investigated.

Since at least 2002, the U.S. Commission 

on Civil Rights identified a lack of adequate 

resources for state and federal monitoring and 

enforcement programs. Upcoming budget 

proposals should assure adequate resources to 

carry out rigorous monitoring and enforcement 

activities.40

OSEP should continue to strengthen its 

partnership with the Protection and Advocacy 

(P&A) System to improve IDEA compliance. The 

P&A System comprises a nationwide network 

of congressionally 

mandated, legally 

based disability rights 

agencies operating in 

every state and territory 

in the United States. 

The P&A network has 

the authority to provide 

legal representation and advocacy services to all 

people with disabilities. Despite the fact that the 

P&A System has no designated funding source 

for education-related casework, P&A advocates 

and attorneys work with families and schools 

to ensure students with disabilities receive 

the supports and services they are entitled to 

receive. The extensive 

education work of the 

P&A networks makes 

them uniquely qualified 

to assist in monitoring 

and enforcement 

activities at both the 

federal and state levels. 

One large state P&A network reported having 

24 attorneys and advocates across the state 

doing special education advocacy work. The P&A 

networks generally seek to focus their education 

work on systemic issues such as restraint 

and seclusion, discipline, and least restrictive 

environment (LRE). Many use the IDEA state 

Since at least 2002, the U.S. 

Commission on Civil Rights identified 

a lack of adequate resources for 

state and federal monitoring and 

enforcement programs.

The extensive education work of the 

P&A networks makes them uniquely 

qualified to assist in monitoring and 

enforcement activities at both the 

federal and state levels.

28 National Council on Disability
complaint process, discussed later in this report, 

as a means to address such systemic issues and 

bring about corrective action.

ED funds 104 parent information centers 

across the country, which includes 65 Parent 

Training Information Centers (PTIs), 30 

Community Parent Resource Centers (CPRCs) 

and nine Technical Assistance Centers. Through 

the PTIs and CPRCs, “children with disabilities 

and their parents receive training and information 

on their rights, responsibilities, and protections 

under IDEA, in order to develop the skills 

necessary to cooperatively and effectively 

participate in planning and decision making 

relating to early intervention, educational, and 

transitional services.”41 The centers also provide 

information to parents on alternative methods of 

dispute resolution, such as mediation. However, 

the centers rarely provide direct advocacy 

services to parents, and few have attorneys on 

staff. This is in large part due to their limited 

role as defined under IDEA and to inadequate 

funding, which has declined from $28.9 million in 

2012 to $27.4 million in 2015 through 2017.42

Federal Monitoring and Enforcement of IDEA Compliance 29
30 National Council on Disability
Chapter 4: State Monitoring of Local Educational 

Agencies (LEAs)

I

DEA places responsibility for monitoring 

and enforcement of special education 

implementation of LEAs with SEAs. The IDEA 

does not establish any direct or enforcement 

relationship between ED, which distributes the 

IDEA funds to the states, and an LEA.

When states monitor LEAs’ implementation 

of IDEA, regulations require that they focus on 

improving educational results and functional 

outcomes for all 

children with disabilities. 

Monitoring must also 

ensure that public 

agencies meet the 

program requirements 

under IDEA, with an 

emphasis on improving educational results for 

children with disabilities. Monitoring must also 

include (but is not limited to) the following:

■ Making determinations annually about 

the performance of each LEA using the 

same categories used for annual state 

determinations

■ Enforcement using appropriate 

mechanisms, which must include, if 

applicable, technical assistance; conditions 

on funding of an LEA; a corrective action 

plan or improvement plan; or withholding 

funds, in whole or in part, by the SEA

■ Reporting to the public on the performance 

of each LEA on the targets in SPP/APR

States are reminded of the reporting 

requirement each year via letter from OSEP 

informing the state of its determination category. 

The letters state that the

[s]tate must report annually to the public, by 

posting on the State educational agency’s 

(SEA’s) Web Site, the 

performance of each 

local educational 

agency (LEA) located 

in the State on the 

targets in the SPP/

APR as soon as 

practicable, but no later than 120 days after 

the State’s submission of its FFY 2014 SPP/

APR. In addition, your State must:

1. review LEA performance against targets in 

the State’s SPP/APR;

2. determine if each LEA “meets the 

requirements” of Part B, or “needs 

assistance,” “needs intervention,” or 

“needs substantial intervention” in 

implementing Part B of the IDEA;

3. take appropriate enforcement action; and

4. inform each LEA of its determination.43

IDEA places responsibility for 

monitoring and enforcement of 

special education implementation 

of LEAs with SEAs.

Federal Monitoring and Enforcement of IDEA Compliance 31
Despite both IDEA requirements and 

annual reminders, most SEAs are not providing 

the public with information regarding the 

findings of LEA monitoring, including the 

determination category and LEA performance 

on SPP indicators.44 OSEP should monitor SEA 

adherence to this requirement, and take action 

to ensure that every state is in full compliance 

with their legal responsibility to report. Providing 

this information in a user-friendly and easy-tolocate manner would enable the public to use 

the information in a variety of ways, and would 

provide transparency about how LEAs are 

performing.

Lack of Comprehensive Information 

about State Monitoring Practices

Unfortunately, there is a general lack of 

comprehensive information about state 

monitoring practices. 

The latest report, issued 

in 2010, examined 

monitoring and 

improvement practices 

between 2004–2005 and 

2006–2007. Thus, there 

is little information on 

which to base recommendations regarding how 

to improve states’ monitoring and enforcement 

processes.

The 2010 study found, as had previous reports, 

that there was substantial variability in the 

nature and design of states’ monitoring systems. 

It recommended development of a common 

framework across states for consistency and 

research purposes.45

A 2016 study, commissioned by the 

Massachusetts Department of Elementary and 

Secondary Education (ESE), in anticipation of 

changes to its monitoring process, provides 

an inventory of national promising practices 

including a survey of compliance monitoring 

models currently employed in several states, 

with the goal of identifying approaches that 

support improved outcomes in special education 

programs.46 The study found these best practices 

enhance a robust monitoring system:

■ Stakeholder engagement: A diverse group 

of stakeholders should have an important 

role in monitoring activities, working in 

partnership with the state to develop 

targets, review data of improvement 

activities, and make suggestions for update 

to the activities and targets.

■ Vision statement and policy document:

States should develop a vision statement, 

establish goals, and 

define their approach 

to monitoring. This 

should be written and 

described within the 

context of the state’s 

System of General 

Supervision, providing 

as much detail as possible for LEAs and 

other stakeholders to understand all of 

the state’s special education monitoring 

activities. The information should be 

publicly available.

■ Customized approach: There are myriad 

ways for states to develop monitoring 

systems. States should develop a 

monitoring process that is reflective of their 

priorities and designed to improve student 

outcomes.

Despite both IDEA requirements 

and annual reminders, most SEAs 

are not providing the public with 

information regarding the findings 

of LEA monitoring . . .

32 National Council on Disability
In a rare legal move, in 2012 two associations 

of parents of children with disabilities who 

attend California public schools filed a federal 

lawsuit against the California Department of 

Education (CDE), alleging that the state fails 

to effectively monitor 

LEAs’ compliance with 

IDEA. Specifically, the 

suit alleges these three 

violations:

■ CDE monitors local 

school districts’ 

efforts to comply 

with IDEA only 

superficially. It 

does not ask for 

meaningful data or verify the accuracy of 

data it receives. It analyzes data selectively 

and turns a blind eye to negative trends.

■ CDE does not truly investigate the 

complaints it receives. In its investigations, 

it relies on unverified reports prepared by 

allegedly deficient school districts.

■ CDE takes no action to meaningfully enforce 

school districts’ obligations under IDEA. 

It requires only that school districts adopt 

policies, not implement 

those policies, and it is 

satisfied with shallow 

promises of future 

effort. It does not verify 

compliance, and when 

it does, it does so by 

sampling student data 

after advanced warning. 

School districts can 

therefore sanitize their 

records.47

The suit is moving through the courts at the 

time of this report. Its outcome could have a 

significant impact on the monitoring system of 

the nation’s largest SEA.

[I]n 2012, two associations of 

parents of children with disabilities 

who attend California public schools 

filed a federal lawsuit against the 

California Department of Education 

(CDE), alleging that the state 

fails to effectively monitor LEAs’ 

compliance with IDEA.

Federal Monitoring and Enforcement of IDEA Compliance 33
34 National Council on Disability
Chapter 5: IDEA Dispute Resolution Options

I DEA provides several ways in which disputes 

can be addressed, including the written 

state complaint process, mediation, and due 

process complaints. States are charged with the 

responsibility to carry out each of these options 

and ensure timely compliance with federal 

timelines.

Among these 

options, only the 

written state complaint 

process is available 

to parties other than 

the parent or guardian 

of a student receiving 

special education. State complaints may be 

filed by an organization or individual, including 

one from another state. It is also the only 

option that allows complainants to allege 

systemic violations against LEAs.48 In fact, the 

usefulness of state complaints was noted by 

ED when issuing the IDEA federal regulations 

in 2006, stating that “[t]hrough its Part B 

State complaint procedures, each State has 

a powerful tool to address noncompliance 

with Part B of IDEA and its implementing 

regulations in a manner that both supports 

and protects the interests of children and their 

parents and facilitates ongoing compliance by 

the State and its public agencies with the IDEA 

and implementing regulations.”49

The manner in which SEAs handle 

investigations of written state complaints, 

including findings of fact and corrective action 

ordered, varies significantly across states. To help 

address this, OSEP has issued several policy 

letters and guidance in recent years regarding 

issues such as burden 

of proof and corrective 

action.

State complaints 

and the investigation 

reports produced by 

SEAs can serve as critical 

sources of information 

in OSEP monitoring activities. An analysis of the 

issues raised in state complaints and findings 

of noncompliance should be a standard part 

of monitoring activities by SEAs and OSEP. 

Furthermore, steps should be taken by SEAs 

to ensure that all state complaint investigation 

reports are available to the public in a timely 

manner.

Due process complaints continue to be 

the most utilized dispute resolution option for 

individual students and their families. However, 

most of the hearing requests are settled without 

the need for a fully adjudicated (i.e., submitted for 

decision) hearing. Just 2,571 of the 17,107 due 

process complaints filed in 2014–2015 resulted in 

fully adjudicated hearings, or only 3.8 hearings per 

State complaints and the 

investigation reports produced by 

SEAs can serve as critical sources 

of information in OSEP monitoring 

activities.

Federal Monitoring and Enforcement of IDEA Compliance 35
10,000 special education students in the nation. 

The vast majority of complaints are withdrawn, 

dismissed or resolved without a hearing.50

Mediations are requested less frequently than 

due process hearing; however, this is the only 

option that shows steady increase and results in 

more agreements. The past several years have 

also seen wide adoption by states of a process 

known as IEP Facilitation. IEP Facilitation is an 

optional process, not required by IDEA, that SEAs 

or school districts can provide to parents and 

schools. A facilitated IEP meeting is the same as 

any other IEP meeting, except that a facilitator 

joins the meeting.51 The number of states offering 

IEP Facilitation in 2017 was 36, up from 29 in 

2015 and 9 in 2005.52

Yet, according to data compiled by the 

federally funded Center on Dispute Resolution, 

IDEA written state complaints are the least 

utilized dispute resolution options, suggesting 

that this appears to be underutilized as a tool for 

improving the compliance and quality of special 

education programs. The following table shows 

the use of each option during school year 2014–

2015 and the trend between 2006–2007 and 

2014–2015.53

Dispute Resolution 

Option

Number 

Reported

Number per 10,000 

Special Education 

Students Ages 3–21

Trend 2006–2007 

to 2014–2015

Written State 

Complaints filed

4,991 7.5 Declined 12.

Mediation Requests 10,260 15.3 Increased 19.

Due Process 

Complaints filed

17,107 25.5 Declined 8.

A 2014 Government Accountability Office 

(GAO) report, Special Education: Improved 

Performance Measures Could Enhance Oversight 

of Dispute Resolution, noted that data collected 

on due process hearings

does not provide clear, complete 

information about the duration of this 

process, information which is useful for 

ensuring effective program monitoring 

and targeted technical assistance. While 

Education tracks the number of hearing 

decisions made within 45 days, without 

information on the amount of time added 

to decisions timelines by extensions, 

Education is limited in its ability to monitor 

in this area, which could negatively affect 

children and their families by, for example, 

delaying the provision of appropriate special 

education services.

The report recommended that OSEP 

revise its performance measure to collect 

information from states on the amount of time 

that extensions add to due process–hearing 

decisions.54

36 National Council on Disability
The data and results of the state complaint 

process, mediations, and facilitated IEP 

meetings indicate that there are viable options 

to parents and families prior to proceeding to 

a due process hearing. Given the low rate of 

due process hearings that are fully adjudicated, 

further study is needed to determine how 

families may be informed of alternative dispute 

resolution options and the state complaint 

process.

Federal Monitoring and Enforcement of IDEA Compliance 37
38 National Council on Disability
OCR has, pursuant to its authority under 

Section 504 of the Rehabilitation Act and 

ADA’s Title II, issued several guidance 

documents relating to the rights of children with 

disabilities in public schools. Frequently, OCR and 

OSERS issue joint DCLs 

and policy guidance in an 

attempt to provide states 

and LEAs with guidance 

on systemic issues such 

as bullying, restraint and 

seclusion, and access 

to accelerated programs and extracurricular 

athletics.55

Unlike OSEP, OCR has the resources and 

statutory authority to investigate complaints 

filed against individual LEAs. OCR has regional 

offices staffed with attorneys who carry 

out investigations of complaints and seek 

resolutions. OCR also initiates cases, typically 

called compliance reviews, to target resources 

on compliance problems that appear particularly 

acute.

OCR has seen a dramatic increase in 

complaints. In its latest annual report (2016), OCR 

documented receiving 16,720 complaints, by far 

the highest one-year total in OCR’s history and 

61 percent higher than 2015. Nearly 6,000 of 

the complaints filed in 2016 alleged violations of 

disability laws covering a broad range of issues. 

Of those, over 2,000 alleged violation of a free 

appropriate public education. OCR resolved 

over 5,200 claims of disability discrimination, 

and entered into 587 written agreements in 

fiscal year 2016.56 The dramatic increase in OCR 

complaints involving 

children with disabilities, 

the majority of whom are 

IDEA-eligible students, 

might suggest that 

parents and other parties, 

such as advocates, are 

turning to OCR complaints filed as violations 

of Section 504 rather than using the dispute 

resolution options under IDEA. Thus, when 

considering the trends in disputes, it is important 

to consider data on complaints filed under both 

IDEA and Section 504.

The ADA Amendments Act of 2008 broadened 

the eligibility for protections to children with 

disabilities under Section 504. As a result, the 

number of children with Section 504 plans 

has increased. According to data from the 

2011–2012 Civil Rights Data Collection (CRDC), 

738,500 students (approximately 1.5 percent 

of public school enrollment) are eligible under 

Section 504.57 This is in addition to almost six 

million public school students who are eligible 

under IDEA. All IDEA eligible students are also 

protected by Section 504.

Chapter 6: Role of the Office for Civil Rights (OCR)

OCR resolved over 5,200 claims 

of disability discrimination, and 

entered into 587 written agreements 

in fiscal year 2016.

Federal Monitoring and Enforcement of IDEA Compliance 39
Current funding in the 2018 proposed 

budget remains flat funded at $108.5 million 

for the Education Department’s Office for Civil 

Rights58— which has investigated thousands of 

complaints of discrimination in school districts 

across the country and needs to retain the ability 

to do so going forward. Executive Order 13777, 

which mandated every federal agency review 

existing regulations and recommend which 

are “burdensome” or too expensive for school 

districts, states, and colleges to implement, must 

be carefully watched to ensure there is not a 

discriminatory or chilling effect on enforcement of 

civil rights.

40 National Council on Disability
Chapter 7: Role of the Department of Justice (DOJ)

T

he DOJ Civil Rights Division, Educational 

Opportunities Section, is primarily 

responsible for enforcing Title IV of 

the Civil Rights Act of 1964, which prohibits 

discrimination on the basis of race, color, 

national origin, sex, and religion in public schools 

and institutions of higher learning; the Equal 

Educational Opportunities Act of 1974, which, 

among other things, requires states and school 

districts to provide English learner (EL) students 

with appropriate 

services to overcome 

language barriers; and 

ADA, which prohibits 

disability discrimination. 

The Section will also 

enforce Section 504 of 

the Rehabilitation Act 

and IDEA upon referral 

from other governmental agencies. The Section 

may also intervene in private suits alleging 

violations of education-related anti-discrimination 

statutes.59

Despite the fact that IDEA gives ED the 

authority to refer states to DOJ after several 

consecutive annual determinations that the state 

is failing to implement IDEA in compliance with 

IDEA law and regulations, ED has not exercised 

this authority since beginning the monitoring 

activities required by IDEA 2004.

In recent years, ED and DOJ have jointly filed 

a number of amicus curiae briefs in ongoing 

federal litigation. These briefs are another method 

by which ED establishes its policies and views 

on issues involving individual cases that interpret 

the requirements of IDEA. These cases have 

presented issues involving evaluations, the 

responsibility of LEAs to provide translations 

for parents of children with disabilities at IEP 

meetings and similar meetings where the 

parents do not speak and 

understand English well, 

and overrepresentation 

of students of color 

in special education. 

At the appellate level, 

briefs have addressed 

the interaction of 

IDEA and ADA’s Title II 

regarding a Deaf and Hard of Hearing student, 

access of P&A networks to student records, 

whether efforts to stop bullying of a child with 

a disability must be addressed in the child‘s 

IEP, whether a child might qualify as having a 

disability under more than one category, and 

whether a child’s consistent failure to advance 

academically violates IDEA. ED and DOJ have 

also jointly filed briefs in IDEA cases decided by 

the Supreme Court in 2016, including a brief in 

Endrew F. v. Douglas County School District that 

Despite the fact that IDEA gives 

ED the authority to refer states 

to DOJ . . ., ED has not exercised 

this authority since beginning the 

monitoring activities required by 

IDEA 2004.

Federal Monitoring and Enforcement of IDEA Compliance 41
addressed the critical issue of whether IDEA 

requires a “meaningful benefit” for students 

with disabilities.60 ED also sends notifications to 

school districts explaining the positions taken in 

its amicus briefs.

In 2016, DOJ, in 

consultation with ED, 

filed a complaint in 

federal court alleging 

that the state of Georgia 

had violated ADA’s Title 

II by unnecessarily 

segregating many 

students with behavioral 

disabilities in separate 

school buildings around 

the state, which was 

known as the Georgia 

Network for Educational and Therapeutic Support 

(GNETS) Program.61 Placement in GNETS 

completely isolates these students from their 

peers. The DOJ investigation revealed that the 

separate buildings were often in poor condition, 

the students there did not have access to the 

full curriculum other students had, and the 

quality of instruction often was not up to the 

standards of that in other schools. The state of 

Georgia contends that the placement practices 

are lawful under IDEA.62

The government alleged 

that the GNETS program 

violates the community 

integration mandate 

of ADA and the 1999 

Supreme Court’s decision 

in Olmstead v. L.C.

63

It is the first DOJ case 

to challenge a staterun school system for 

segregating students 

with disabilities utilizing 

ADA.64

As these examples demonstrate, there are 

various ways in which ED can set forth its views 

on issues addressing the rights of individual 

students under IDEA, even though its legal 

authority is technically limited to reviewing state 

implementation of IDEA.

In 2016, DOJ, in consultation with 

ED, filed a complaint in federal 

court alleging that the state of 

Georgia had violated ADA’s Title 

II by unnecessarily segregating 

many students with behavioral 

disabilities . . . It is the first DOJ 

case to challenge a state-run school 

system for segregating students 

with disabilities utilizing ADA.

42 National Council on Disability
Current Monitoring and Enforcement 

of IDEA Compliance

Across all stakeholders, there was nearly 

unanimous support for ED’s decision 

to move from reviewing states’ IDEA 

implementation using strictly procedural 

compliance. In their opinion, the new system 

has a better balance of focusing on compliance 

and results such as academic achievement and 

graduation in order to improve the quality of 

education for students 

with disabilities. Several 

stated that the mostly 

compliance-oriented 

review that OSEP used 

prior to moving to RDA 

seemed to accomplish 

very little in improving 

the quality of special 

education services.

Nearly all also agreed that while the shift to 

RDA appears to be a positive development, it is 

too early to determine whether the new approach 

will translate into improved services and outcomes 

for students with disabilities. Most individuals 

interviewed agreed that, as promising as RDA 

appears to be, it will take several years before 

experts in the field can decide whether progress 

has been made under this approach. However, no 

one recommended a return to past review policies.

There was a consistent view, however, that 

the current method of OSEP review of state data 

and reporting can provide only limited results. 

One continuing concern is that because the state 

data is a statistical aggregation of data provided 

by LEAs, this data permits OSEP to discover 

only broad patterns of violations. Given the large 

number of LEAs in most states, even systemic 

violations or problems within one or two LEAs 

are not readily apparent in state data.

These issues can 

create two problems. 

First, as previously 

stated, problems in 

one or two LEAs, even 

of a systemic nature, 

may not be apparent 

when statewide data 

is aggregated. The 

second is that, even if OSEP can discern a broad 

pattern of IDEA problems or violations, the 

process of correcting the underlying violation 

or questionable conduct can be very timeconsuming. The data must demonstrate the 

violations, OSEP must discover them, and then 

OSEP must describe the issues to the state and 

allow time for corrective action. Consequently, it 

may take OSEP and states a number of years to 

uncover and remedy problems. During that time, 

children will not be receiving appropriate IDEA 

Chapter 8: Perspectives of Key Stakeholders

[I]t may take OSEP and states a 

number of years to uncover and 

remedy problems. During that 

time, children will not be receiving 

appropriate IDEA services, and 

problematic practices will continue.

Federal Monitoring and Enforcement of IDEA Compliance 43
services, and problematic practices will continue. 

Denial of FAPE, LRE, or appropriate services 

for a number of years can have very serious or 

even catastrophic consequences on an individual 

student’s development. The OSEP review 

process, many felt, was unfortunately slow and 

cumbersome, allowing deficiencies for many 

students to continue for long periods of time.

Several interviewees commented that OSEP 

appears to no longer make on-site visits to LEAs 

that may be having difficulties or deficiencies in 

implementing IDEA. Each 

felt an on-site presence 

used to be helpful to 

OSEP, and indicated to 

state and local officials, 

and the public, that OSEP 

was actively monitoring 

compliance. Many said 

those visits should be 

resumed.

Several interviewees stated that the accuracy 

of LEA data has improved over the years. They 

also acknowledged that there might still be 

occasions when the data that an LEA provides 

to the state is not accurate. Unless the state 

discovers the problems, and most often they 

will not be apparent, the inaccuracies will 

be embedded in the state’s data report that 

becomes its SPP/APR. To assist states with 

quality of data, OSEP funds two technical 

assistance centers, the Center for IDEA Fiscal 

Reporting65 and the IDEA Data Center.66

Nearly all the individuals interviewed had the 

viewpoint that OSEP’s enforcement efforts have 

been too mild and need to be more assertive. 

When OSEP determines that a state’s data 

discloses deficiencies in IDEA implementation, 

OSEP will point out those deficiencies but will 

not impose sanctions; rather, OSEP will simply 

offer technical assistance to the state to help 

correct the problem. Some participants felt 

that while technical assistance is welcomed 

and can work, in many instances, use of more 

severe sanctions authorized by IDEA (e.g., 

withholding of federal funds, referral to DOJ for 

enforcement action) should be employed, or at 

least explored, more than they are now. The view 

of some was that there is insufficient follow-up 

by OSEP, and problems can be left unremedied. 

One interviewee 

suggested charging 

ED’s Inspector General 

with regular reviews of 

OSEP’s monitoring and 

enforcement.

Several interviewees 

stated that most states 

fail to make their annual 

ratings of LEAs special education implementation 

available to the public in a manner that is userfriendly, accessible to people with disabilities, 

and easy to locate. Doing so would significantly 

aid the public’s scrutiny of LEAs and assist with 

any challenge to the actions of an LEA in either 

individual or systemic cases. As states were 

unwilling to make critical data and assessments 

about LEAs available, stakeholders unanimously 

asserted that OSEP should require states to 

make the data public.

IDEA Dispute Resolution Options

As was stated in a recent law review article, 

“[t]he general consensus is that [IDEA’s] heavy 

reliance on private enforcement (such as due 

process) has led to underenforcement, especially 

for poor or otherwise marginalized groups. . . .”67

The stakeholders interviewed for this report had 

Nearly all the individuals 

interviewed had the viewpoint that 

OSEP’s enforcement efforts have 

been too mild and need to be more 

assertive.

44 National Council on Disability
similar views. Many stated that in most instances 

where an individual is challenging the actions of 

an LEA, the burden falls entirely on the parents.68

There were similar views about the use of 

resolution meetings. One interview participant 

said resolution meetings are seldom used in 

his state. Another commented that even when 

used, the burden still seems to be on the parent 

to show the school’s decisions are incorrect. 

Another stated that parents are often intimidated 

in such meetings. Nearly all agreed that, even 

in resolution meetings, 

parents need the kind 

of legal or educational 

expertise school district 

personnel already have.

When a due process 

hearing is the next 

available step for parents, 

it is seldom used. The 

individuals interviewed 

unanimously stated 

people of limited means are simply unable to 

use these processes to challenge a school’s IEP 

or other aspects of IDEA. Formal due process 

hearings are expensive, and legal representation 

is essential to obtaining a successful outcome. 

As all those interviewed recognized, schools 

automatically have legal representation, but 

parents must afford their own. Although parents 

may be able to seek reimbursement for their 

attorney fees if they are successful, parents must 

bear the costs of bringing the case. In addition, 

the burden of proof is on the parents, making a 

successful challenge much more difficult. Many 

felt that due process hearings are also stacked 

against parents because the hearing officers are 

trained by the SEAs, and their conduct will be 

biased to support the LEA.

Some stated that use of IEP Facilitation is 

resulting in a better and less adversarial process. 

Several commented that the PTIs funded through 

IDEA provide parents the needed assistance in 

understanding their dispute resolution options, 

but that the “playing field” between many 

parents and school systems is simply financially 

uneven, with parents at a serious and often 

insurmountable disadvantage.

Nearly all forum participants stated that 

there is a pressing need for more information 

and training for 

parents. They stated 

that many parents 

are unprepared for 

meetings with schools 

or LEA administrators, 

and therefore are at a 

severe disadvantage. 

Many do not understand 

their rights under IDEA, 

and they are unable to 

challenge decisions that school officials make 

for their children.

One interviewee made the interesting 

observation that the legal relationships created 

by IDEA effectively excludes parents. OSEP’s 

relationship in the federal review process is 

with state agencies, and a state agency’s 

direct relationship in this process is with its 

LEAs. Parents have little formal or required 

input into the process by which OSEP reviews 

and evaluates the performance of states 

and LEAs.

There was also concern about the 

written state complaint process. There were 

comments that staffing at some SEAs has 

been cut, reducing the state’s ability to take 

in and investigate individual complaints. This 

[P]eople of limited means are 

simply unable to use these 

processes to challenge a school’s 

IEP or other aspects of IDEA. Formal 

due process hearings are expensive, 

and legal representation is essential 

to obtaining a successful outcome.

Federal Monitoring and Enforcement of IDEA Compliance 45
reduction makes it impossible for those states 

to investigate many complaints within the 

mandatory time requirements (60 days), or to 

investigate them thoroughly. Complaints about 

individual cases or individual children were not 

given any sort of priority, 

and SEAs did not appear 

to pursue any complaints 

aggressively. Some 

SEAs appear to dismiss 

complaints without 

any basis or because 

of lack of information, 

without giving the 

complainant an opportunity to respond. Several 

research participants expressed a general view 

that state complaint systems are not effective, 

even though this is the least adversarial and 

least expensive route to settling disputes. 

Forum participants expressed general feelings 

of bias, with SEAs making rulings in favor of 

districts. Parents who fail to follow very strict 

and specific complaint procedures are unlikely 

to have their case investigated, creating yet 

another disadvantage. One stakeholder noted 

that SEA does not feel 

that it has enforcement 

authority over LEAs—

that the state could 

recommend that an 

LEA take corrective 

actions as a result of a 

complaint investigation 

but could not require that 

action be taken despite the clear enforcement 

authority of SEAs in federal regulations. It is 

important that IDEA provides no basis for raising 

these concerns beyond SEA, as the direct 

appeal option to OSERS was removed in IDEA 

regulations issued in 1997.

[S]taffing at some SEAs has been 

cut, . . . mak[ing] it impossible for 

those states to investigate many 

complaints within the mandatory 

time requirements (60 days), or to 

investigate them thoroughly.

46 National Council on Disability
Chapter 9: Findings and Recommendations

T

his report examined findings in previous 

NCD reports, the progress achieved since 

the last report 16 years ago, the evolution 

of monitoring practices and current practices by 

ED, and makes the following findings.

Monitoring

It is disturbing that very little has actually changed 

since the passage of IDEA more than 40 years 

ago with regard to the use of monitoring as an 

effective tool to drive compliance with the law 

and systemic change that is demonstrated to 

have an effect on student learning and outcomes.

There is a still a heavy reliance on private 

enforcement resulting in underenforcement 

by OSEP. This continues to leave an unfair and 

arguably inequitable burden on children and 

families.

IDEA does not impose a specific monitoring 

framework on states; however, the system 

should be utilized to its full capacity, and states 

need to be held accountable for enforcing IDEA 

requirements and for ensuring continuous 

improvement.

■ Forum participants and interviewees were 

nearly unanimous in support of ED’s move 

to RDA, believing the new system has a 

better balance of focus on compliance and 

results, such as academic achievement and 

graduation.

❍ Prior to the shift to the RDA model, 

monitoring using the SPP/APR data and 

information from on-site visits remained 

primarily focused on compliance rather 

than results. In response, states focused 

on correction of noncompliance. State 

performance on compliance indicators 

improved significantly while student 

performance remained relatively 

unchanged. The current system shows 

promise, but it is still too early to 

tell if RDA will in fact result in better 

outcomes.

❍ ED has suspended on-site visits, 

which stakeholders viewed as highly 

problematic. On-site visits are helpful 

to indicate to state and local officials 

and the public that OSEP is actively 

involved.

❍ Stakeholders view ED monitoring as “too 

mild and needs to be more assertive.” 

Evidence of this includes the following:

■ No state has ever been designated as 

“needing substantial intervention.”

■ ED does not make use of its authority 

to withhold federal funds when a 

state is noncompliant with the law. 

OSEP has not made any referrals to 

DOJ for enforcement under IDEA.

Federal Monitoring and Enforcement of IDEA Compliance 47
Office of Civil Rights

OCR does not have direct responsibility for 

monitoring of IDEA, rather it primarily enforces 

ADA and Section 504.

■ There has been a dramatic increase in 

OCR complaints involving students with 

disabilities, the majority of whom are eligible 

under IDEA. The year 2016 saw the highest 

number of complaints ever filed ever, 61 

percent higher than the number filed in 

2015.

■ This trend might suggest that parents and 

other parties, such as advocates, are turning 

to OCR complaints filed as violations of 

Section 504 rather than using the dispute 

resolution options under IDEA.

■ Considering the trends in disputes, it is 

important to consider data on complaints 

filed under both IDEA and Section 504.

OSEP Oversight

■ OSEP and OSERS regularly issue DCLs 

and Memorandums to address issues, 

including violations of IDEA, that appear to 

be systemic.

■ OSEP also issues policy letters that are 

direct responses to requests for clarification 

on a variety of issues.

■ There is no formal process through which 

one can file a complaint directly to OSEP 

regarding alleged violations of IDEA.

■ The current method of OSEP review of 

state data and reporting can provide only 

limited results because data is aggregated, 

showing only broad patterns of violations, 

and systemic violations within LEAs are not 

readily apparent.

■ Though not currently used for such purpose, 

state complaints and investigation reports 

produced by SEAs can serve as critical 

sources of information in OSEP monitoring.

■ Despite both IDEA requirements and annual 

reminders from OSEP, most SEAs are not 

providing the public with information about 

the findings of LEA monitoring.

IDEA

Several ways are provided in which disputes can 

be addressed through a state complaint system, 

through administrative hearing process, and 

through meditation.

■ Given the low rate of due process hearings 

that are fully adjudicated, further study is 

needed to determine how families choose 

which dispute resolution option to utilize, 

and the pros/cons of each for both individual 

relief and systemic change.

■ How parents might be better informed of 

alternative dispute resolution options and 

the state complaint process should also be 

fully explored.

Recommendations

The following recommendations are based upon 

independent reports and input from stakeholders 

interviewed to inform this report.

48 National Council on Disability
Congress should

1. Appropriate funds to establish an independent entity to assist states and the Federal 

Government using evidence-based practices shown to enhance robust state level 

monitoring and enforcement systems;

2. Expand the role of PTIs to include provision of IEP Facilitation and increase funding to 

provide such services to LEAs;

3. Appropriate funds for competitive grants to develop and pilot effective monitoring and 

enforcement activities that improve results and correct noncompliance in a timely manner;

4. Place the burden of proof in IDEA administrative hearings exclusively on LEA;

5. Ensure that IDEA requires the costs of expert witness to be assessed against LEA/SEA 

if the parent prevails, as other civil rights laws allow; and

6. Require SEAs to make all IDEA state complaint investigation reports available to the 

public, and provide for a period of reconsideration of findings. 

ED should

7. Engage in more aggressive enforcement and utilize its authority to withhold federal 

funds and make referrals to DOJ for enforcement as permitted by IDEA;

8. Establish a formal procedure for submission of complaints to ED and OSEP;

9. Continue and accelerate efforts to improve validity and reliability of systems of data 

gathering and analysis;

10. Shorten the length of time between SPP/APR submission and release of 

determinations and other findings;

11. Provide clear instructions that enable stakeholders to locate OSEP’s response to each 

state’s SPP/APR and any actions required by the states;

12. Provide links to the information each state is required to make available in OSEP’s SPP/

APR online portal to improve the public’s access to LEA determinations;

13. Provide comprehensive guidance to SEAs on investigating and enforcing state 

complaints, including corrective actions for denial of FAPE;

(continued)

Federal Monitoring and Enforcement of IDEA Compliance 49
14. Analyze the issues raised, and findings of noncompliance in state complaints and 

investigative reports should be a standard part of monitoring activities by OSEP;

15. Pursue regulatory revision to extend the statute of limitations on filing written state 

complaints to two years; and

16. Increase funding of PITs in budget proposals, and expand the role of PTIs in monitoring 

and enforcement, including identification of systemic noncompliance. 

ED should, continued

SEAs should

17. Fully adhere to the requirement to make public all information regarding LEA monitoring 

and enforcement of IDEA compliance, including LEA APRs, annual determinations, 

corrective actions ordered, and funding withheld; and develop user-friendly, easily 

locatable information in collaboration with parents and other stakeholders in the state 

(Maryland’s website for display of this information at http://mdideareport.org/special_

main.aspx should be the model for such reporting);

18. Make public all state complaint investigation reports in a timely and user-friendly manner;

19. In responding to state complaints, address corrective actions for denial of FAPE, 

including compensatory services and monetary reimbursement consistent with CFR 

300.151(b)(1), and rigorously enforce all corrective action ordered;

20. Consider state complaints with findings of noncompliance in conjunction with LEA 

monitoring;

21. Make information on dispute resolution options highly visible on SEA websites;

22. Expand parent training opportunities through increased support for outreach by federally 

funded PTIs and by requiring school systems to enhance the provision of training and 

educational material to parents;

23. Align all resources with SSIP-supported LEAs in improving the educational outcomes 

for students with disabilities;

24. Meaningfully include parents of children with disabilities, including PTI personnel, in 

monitoring of LEAs and in regularly reviewing data and development of SPP/APR; and

25. Ensure that SEA website content and functionality is accessible to people with disabilities.

50 National Council on Disability
Endnotes

1 Individuals with Disabilities Education Improvement Act of 2004, Pub. L. No. 108-446, 118 Stat. 2647 

(December 3, 2004).

2 National Council on Disability, Improving the Implementation of the Individuals with Disabilities Ed Act: 

Making Schools Work for All of America’s Children (Washington, DC: Author, 1995), accessed October 18, 

2017, www.ncd.gov/publications/1995/09051995.

3 National Council on Disability, Back to School on Civil Rights (Washington, DC: Author, 2000), accessed 

October 18, 2017, http://ncd.gov/publications/2000/Jan252000.

4 There is no demographic information from the 23 email responses.

5 29 U.S.C. § 794.

6 42 U.S.C. § 12101, et seq.

7 Every Student Succeeds Act, Pub. L. No. 114-95, 114 Stat. 1177 (2015).

8 U.S. Department of Education, Office for Civil Rights, Protecting Students with Disabilities: Frequently Asked 

Questions About Section 504 and the Education of Children with Disabilities, 2015, accessed October 18, 

2017, https://www2.ed.gov/about/offices/list/ocr/504faq.html.

9 42 U.S.C. § 12134.

10 Board of Education of Hendrick Hudson Central School District, Westchester County v. Rowley, 458 U.S. 176, 

186 (1982).

11 National Center for Special Education Accountability Monitoring, Developing and Implementing an Effective 

System of General Supervision: Part B, 2007, accessed October 18, 2017, http://www.hdc.lsuhsc.edu/docs/

TIERS/resources/Effective%20General%20Supervision%20Paper_Part%20B.pdf.

12 Center for Technical Assistance for Excellence in Special Education, SEA Monitoring Systems: Entering the 

Age of Results Driven Accountability, 2015, accessed October 18, 2017, http://www.taese.org/cms/images/_

utahstate_media/documents/SEAmonsysfin2015122bj.pdf.

13 U.S. Department of Education, Seventeenth Annual Report to Congress on the Implementation of 

the Individuals with Disabilities Education Act, 1995, accessed October 18, 2017, https://ed.gov/pubs/

OSEP95AnlRpt/ch6b.html.

14 Individuals with Disabilities Education Act Amendments of 1997, Pub. L. No. 105-17, 11 Stat. 37 (1997).

15 National Center for Special Education Research, A Study of States’ Monitoring and Improvement Practices 

Under the Individuals with Disabilities Education Act (Rockville, MD: Westat, 2010), accessed October 18, 

2017, https://ies.ed.gov/ncser/pubs/20113001/.

16 Ibid.

17 National Council on Disability, supra n. 3.

18 National Council on Disability, National Disability Policy: A Progress Report—June 2001, 2001, accessed 

October 18, 2017, http://www.ncd.gov/progress_reports/June2001.

19 President’s Commission on Excellence in Special Education, A New Era: Revitalizing Special Education 

for Children and Their Families, 2002, accessed October 18, 2017, http://ectacenter.org/~pdfs/calls/2010/

earlypartc/revitalizing_special_education.pdf.

20 Ibid.

21 Ibid.

22 U.S. Commission on Civil Rights, U.S. Commission on Civil Rights Recommendations for the Reauthorization 

of the Individuals with Disabilities Education Act, 2002, accessed October 18, 2017, http://www.usccr.gov/

pubs/idea/recs.htm.

23 Ibid.

Federal Monitoring and Enforcement of IDEA Compliance 51
24 Government Accountability Office, Special Education: Improved Timeliness and Better Use of Enforcement 

Actions Could Strengthen Education’s Monitoring System (Washington, DC: Author, 2004), accessed October 

18, 2017, http://www.gao.gov/assets/250/244030.html.

25 Center for Technical Assistance for Excellence in Special Education, supra n. 12.

26 U.S. Department of Education, Department Announces New Effort to Strengthen Accountability for Students 

with Disabilities: Moving from Compliance-Focused Approach to One Driven by Results (Washington, DC: 

OSEP Press Office, 2012), accessed October 18, 2017, http://www2.ed.gov/about/offices/list/osers/osep/rda/

rdaarchvie.html.

27 U.S. Department of Education, Office of Special Education and Rehabilitative Services, Results Driven 

Accountability, 2016, accessed October 18, 2017, https://ed.gov/about/offices/list/osers/osep/rda/index.html.

28 Center for IDEA Fiscal Reporting (CIFR), accessed October 18, 2017, https://cifr.wested.org/.

29 IDEA Data Center, accessed October 18, 2017, https://ideadata.org/.

30 U.S. Department of Education, Office of Special Education and Rehabilitative Services, Part B State 

Performance Plan (Part B – SPP) and the Part B Annual Performance Report (Part B – APR), 2015, accessed 

October 18, 2017, https://www2.ed.gov/policy/speced/guid/idea/bapr/2015/2015baprmemo122314.pdf.

31 WestEd, National Center for Systemic Improvement, accessed October 18, 2017, https://www.wested.org/

project/national-center-for-systemic-improvement/.

32 34 C.F.R. § 300.604.

33 Interview with representatives of the Office of Special Education Programs, U.S. Department of Education, 

October 28, 2016.

34 U.S. Department of Education, OSEP Policy Letters (Including OSEP Memos, Dear Colleague Letters, and 

FAQs), accessed October 18, 2017, https://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/index.html.

35 Some courts have considered the DCL guidance as important guidance for courts. See T.K. v. New York City 

Dep’t of Educ. (2d Cir. 2016), accessed November 22, 2017, http://www.jdsupra.com/legalnews/second-circuitholds-district-denied-88311/. See also 20 U.S.C. §1406.

36 Council of Chief State School Officers and the National Center for Systemic Improvement, ESSA: Key 

Provisions and Implications for Students with Disabilities, 2016, accessed October 18, 2017, http://www.ccsso.

org/Documents/2016/ESSA/ESSA_Key_Provisions_Implications_for_SWD.pdf.

37 U.S. Department of Education, supra n. 34.

38 Brian M. Rosenthal, “Denied,” Houston Chronicle (2016), accessed October 18, 2017, http://www.

houstonchronicle.com/denied/.

39 Kathleen Megan, “Education Official: State Could Violate Federal Law under Judge’s School Reform Ruling,” 

Hartford Courant (December 15, 2016), accessed October 18, 2017, http://www.courant.com/education/hcfederal-concern-ccjef-1216-20161215-story.html.

40 U.S. Commission on Civil Rights, U.S. Commission on Civil Rights Recommendations for the Reauthorization 

of the Individuals with Disabilities Education Act, 2002, accessed October 18, 2017, http://www.usccr.gov/

pubs/idea/recs.htm.

41 U.S. Department of Education, Special Education, Fiscal Year 2017 Budget Request, accessed October 18, 

2017, http://www2.ed.gov/about/overview/budget/budget17/justifications/h-specialed.pdf.

42 Ibid.

43 U.S. Department of Education, 2016 Determination Letters on State Implementation of IDEA, 2016, accessed 

October 18, 2017, https://www2.ed.gov/fund/data/report/idea/ideafactsheet-determinations-2016.pdf.

44 One state, Maryland, provides all of the required information in a user-friendly format that is accessible to 

people with disabilities (accessed October 18, 2017, http://mdideareport.org/special_main.aspx), which should 

serve as an exemplar to other SEAs.

45 National Center for Special Education Research, supra n. 15.

46 Public Consulting Group, Coordinated Program Review, Summary Report, 2016, accessed October 18, 2017, 

http://www.doe.mass.edu/pqa/news/2016-1215CPRSummaryReport.docx.

52 National Council on Disability
47 Morgan Hill Concerned Parents Association v. California Department of Education, accessed October 18, 2017, 

https://dockets.justia.com/docket/california/caedce/2:2011cv03471/233488 and https://docs.justia.com/cases/

federal/district-courts/california/caedce/2:2011cv03471/233488/333 for update where the judge issued an 

order on 9/18/17 granting discovery.

48 U.S. Department of Education, Office of Special Education and Rehabilitative Services, Dispute 

Resolution Procedures under Part B of the Individuals with Disabilities Education Act (Part B),

2013, accessed October 18, 2017, https://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/

acccombinedosersdisputeresolutionqafinalmemo-7-23-13.pdf.

49 71 Fed. Reg. 46601 (August 14, 2006).

50 Center for Appropriate Dispute Resolution in Special Education, Trends in Dispute Resolution under the 

Individuals with Disabilities Education Act (IDEA), 2016, accessed October 18, 2017, http://www.cadreworks.

org/sites/default/files/resources/TrendsinDisputeResolutionundertheIDEAOCT16.pdf.

51 Center for Appropriate Dispute Resolution in Special Education, Individualized Education Program (IEP) 

Facilitation: A Guide for Parents of Children & Youth (Ages 3–21), 2014, accessed October 18, 2017, http://

www.cadreworks.org/sites/default/files/IEP_Facilitation_ParentGuide_11.3.14.pdf.

52 Center for Appropriate Dispute Resolution in Special Education, supra n. 50.

53 Center for Appropriate Dispute Resolution in Special Education, IDEA Dispute Resolution Data Summary for 

U.S. and Outlying Areas 2004–05 to 2014–15, 2016, accessed October 18, 2017, http://www.cadreworks.org/

sites/default/files/2014-15%20DR%20Data%20Summary%20U.S.%20%26%20Outlying%20Areas.pdf.

54 Government Accountability Office, Special Education: Improved Performance Measures Could Enhance 

Oversight of Dispute Resolution, 2014, accessed October 18, 2017, http://www.gao.gov/products/GAO-14-390.

55 U.S. Department of Education, Office for Civil Rights Policy Guidance, Policy Guidance, 2017, accessed 

October 18, 2017, https://www2.ed.gov/about/offices/list/ocr/frontpage/faq/rr/policyguidance/index.html.

56 U.S. Department of Education, Office for Civil Rights, Securing Equal Educational Opportunity: Report to the 

President and Secretary of Education under Section 203(b)(1) of the Department of Education Organization 

Act, FY 2016 (Washington, DC: U.S. Department of Education, 2016), accessed October 18, 2017, https://

www2.ed.gov/about/reports/annual/ocr/report-to-president-and-secretary-of-education-2016.pdf.

57 The Advocacy Institute, Analysis of Students Served Solely under Section 504 School Year 2011–12, 2015, 

accessed October 18, 2017, http://www.advocacyinstitute.org/resources/Overall.504StudentsCRDC2012.pdf.

58 Appropriations Bill, 2018. Committee on Appropriations. Departments of Labor, Health and Human Services, 

and Education, and Related Agencies. H. Rep 115 - ___ at 221. July 12, 2017, accessed October 18, 2017, 

https://appropriations.house.gov/uploadedfiles/23920.pdf.

59 U.S. Dept. of Justice, Civil Rights Division, Educational Opportunities Section Overview, 2017, accessed 

October 18, 2017, https://www.justice.gov/crt/educational-opportunities-section-overview.

60 Endrew F. v. Douglas County School District RE-1 (S. Ct.) – Amicus, accessed October 18, 2017, https://www.

justice.gov/crt/appellate-briefs-and-opinions-8. Question Presented: What is the level of educational benefit 

that school districts must confer on children with disabilities to provide them with the free appropriate public 

education guaranteed by the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq.? Holding:

To meet its substantive obligation under the Individuals with Disabilities Education Act, a school must offer an 

“individualized education program” reasonably calculated to enable a child to make progress appropriate in 

light of the child’s circumstances.

61 U.S. v. State of Georgia (Georgia Network for Educational and Therapeutic Support Program), accessed 

October 18, 2017, https://www.justice.gov/crt/case-document/us-v-georgia-georgia-network-educational-andtherapeutic-support-program-complaint. On October 11, 2017, Georgia Advocacy Office and the Arc filed a 

class action lawsuit alleging discrimination in placement of students with disabilities in the GNETS program, 

see http://www.bazelon.org/wp-content/uploads/2017/10/GNETS-Complaint-FINAL-10.10.17.pdf.

62 See also Alan Judd, “Georgia ‘psychoeducational’ students segregated by disability, race,” The Atlanta JournalConstitution, 2016, accessed October 18, 2017, http://specials.myajc.com/psychoeducation/.

Federal Monitoring and Enforcement of IDEA Compliance 53
63 527 U.S. 581 (1999).

64 Department of Justice, Office of Public Affairs, Justice Department Sues Georgia for Unnecessarily 

Segregating Students with Disabilities, 2016, accessed October 18, 2017, https://www.justice.gov/opa/pr/

justice-department-sues-georgia-unnecessarily-segregating-students-disabilities.

65 Center for IDEA Fiscal Reporting (CIFR), accessed October 18, 2017, https://cifr.wested.org/.

66 IDEA Data Center, accessed October 18, 2017, https://ideadata.org/.

67 Eloise Pasachoff, Advocates, Federal Agencies, and the Education of Children with Disabilities (Georgetown 

Law Faculty Publications and Other Works, 2014), 1390, accessed October 18, 2017, http://scholarship.law.

georgetown.edu/facpub/1390.

68 Council of Parent Attorneys and Advocates, Make Burden of Proof Fair and Equitable, 2016, accessed 

October 18, 2017, http://www.copaa.org/?page=BOP. 

54 National Council on Disability
National Council on Disability 

1331 F Street, NW, Suite 850 

Washington, DC 20004