41370 Federal Register / Vol. 63, No. 148 / Monday, August 3, 1998 / Notices

DEPARTMENT OF EDUCATION

Office of Special Education and

Rehabilitative Services; Assistance to

States for the Education of Individuals

With Disabilities

AGENCY: Department of Education.

ACTION: Notice of written findings and

decision and compliance agreement.

SUMMARY: Section 457 of the General

Education Provisions Act (GEPA), 20

U.S.C. 1234f, authorizes the Secretary to

enter into Compliance Agreements with

recipients that are failing to comply

substantially with Federal program

requirements. In order to enter into a

Compliance Agreement, the Secretary

must determine, in Written Findings

and Decision, that the recipient cannot

comply, until a future date, with the

applicable program requirements, and

that a Compliance Agreement is a viable

means of bringing about such

compliance. On March 10, 1998, the

Secretary entered into a Compliance

Agreement with the District of Columbia

Public Schools (DCPS) and issued

Written Findings and Decision on that

matter. Under section 457(b)(2) of

GEPA, 20 U.S.C. 1234f(b)(2), the Written

Findings and Decision and Compliance

Agreement are to be published in the

Federal Register.

FOR FURTHER INFORMATION CONTACT: Dr.

Gregory R. Corr, U.S. Department of

Education, Office of Special Education

Programs, Mary E. Switzer Building, 600

Independence Avenue S.W.,

Washington D.C., 20202–2722.

Telephone: (202) 205–9027. Individuals

who use a telecommunications device

for the deaf (TDD) may call the TDD

number at (202)260–5137.

Individual with disabilities may

obtain this document in an alternate

format (e.g., Braille, large print,

audiotape, or computer diskette) on

request to the contact person listed in

the preceding paragraph.

SUPPLEMENTARY INFORMATION: Section

454 of GEPA, 20 U.S.C. 1234c, sets out

the remedies available to the

Department when it determines that a

recipient ‘‘is failing to comply

substantially with any requirement of

law applicable’’ to the Federal program

funds administered by this agency.

Specifically, the Department is

authorized to:

(1) Withhold funds,

(2) Obtain compliance through a cease

and desist order,

(3) Enter into a compliance agreement

with the recipient, or,

(4) Take any other action authorized

by law, 20 U.S.C. 1234c(a)(1)–(4).

The Department’s Office of Special

Education Programs (OSEP) has been

working with DCPS over a number of

years to address its serious and on-going

failure to comply with the requirements

of Part B of the Individuals with

Disabilities Education Act (IDEA). On

February 4 and 5, 1997, OSEP—as part

of its regular monitoring program—

conducted public meetings at which

parents, advocates, representatives of

professional groups, and concerned

members of the community provided

testimony indicating that DCPS had

failed to meet many of the requirements

of Part B. The testimony indicated that

several of the violations that had been

identified in prior OSEP monitoring

reports had not been corrected. On

February 10, 1997, OSEP met with

General Julius W. Becton, Jr.,

superintendent and chief executive

officer for DCPS, and members of his

staff to discuss OSEP’s serious concerns

with ongoing compliance issues in

DCPS’ special education programs.

General Becton and his staff

acknowledged that the District’s special

education programs did not comply

with the requirements of Part B and

informed OSEP that DCPS was

developing a strategic plan to address

these violations.

In a March 27, 1997 letter, General

Becton informed OSEP that he believed

that developing a compliance agreement

would be an appropriate course of

action which would be in the best

interests of the children of the District

of Columbia. The purpose of a

Compliance Agreement ‘‘is to bring the

recipient into full compliance with the

applicable requirements of law as soon

as feasible and not to excuse or remedy

past violations of such requirements.’’

20 U.S.C. 1234f(a). In order to enter into

a Compliance Agreement with a

recipient, the Secretary must determine

that compliance until a future date is

not genuinely feasible and that a

Compliance Agreement is a viable

means for bringing about such

compliance.

On March 10, 1998, the Secretary

issued Written Findings and Decision

which held that compliance by DCPS

with the Part B requirements to ensure

that a free appropriate public education

is made available to all eligible children

and youth with disabilities was

genuinely not feasible until a future date

because of the ‘‘magnitude of the

problem’’ and the ‘‘complex and longterm causes’’ underlying that problem,

including an inadequate management

system for its special education

program. The Secretary also determined

that the Compliance Agreement

represents a viable means of bringing

about compliance because of the steps

DCPS has already taken to address its

noncompliance, its commitment of

resources and the plans it has developed

for further action. Moreover, the

Agreement sets out a very specific

schedule that DCPS must meet in

coming into compliance with the Part B

requirements. This schedule, coupled

with specific data collection and

reporting requirements, will allow the

Department to monitor closely DCPS’

progress in meeting the terms of the

Compliance Agreement. The Secretary

signed the Compliance Agreement on

March 10, 1998. The superintendent

and chief executive officer for DCPS,

General Julius W. Becton, Jr. signed the

Agreement on March 16, 1998.

As required by section 457(b)(2) of

GEPA, 20 U.S.C. 1234f(b)(2), the full

text of the Secretary’s Written Findings

and Decision in the Matter of the

Request of the District of Columbia

Public Schools to Enter into a

Compliance Agreement and the binding

provisions of the Compliance

Agreement are set forth in this

publication. The Action Plan items

mentioned in the introduction are not

included in this Notice because they

were included in the Compliance

Agreement for informational purposes

only, to demonstrate DCPS’

commitment to coming into full

compliance with IDEA, and are not

binding on DCPS. OSEP will make

copies of the Action Plan available to

the public upon request.

Electronic Access to This Document

Anyone may view this document, as

well as all other Department of

Education documents published in the

Federal Register, in text or portable

document format (pdf) on the World

Wide Web at either of the following

sites:

http://ocfo.ed.gov/fedreg.htm

http://www.ed.gov/news.html

To use the pdf you must have the Adobe

Acrobat Reader Program with Search,

which is available free at either of the

previous sites. If you have questions

about using the pdf, call the U.S.

Government Printing Office at (202)

512–1530 or, toll free at 1–888–293–

6498.

Anyone may also view these

documents in text copy only on an

electronic bulletin board of the

Department. Telephone: (202) 219–1511

or, toll free, 1–800–222–4922. The

documents are located under Option

G—Files/Announcements, Bulletins,

and Press Releases.
Federal Register / Vol. 63, No. 148 / Monday, August 3, 1998 / Notices 41371

1A copy of the Compliance Agreement, which

was prepared by DCPS in conjunction with

representatives of this Department, is appended to

this decision as Attachment A.

2Part B was recently amended by the Individuals

with Disabilities Education Act Amendments of

1997. (IDEA–97) This decision and the attached

agreement include citations to the current statute as

amended and the regulations currently in effect. On

October 22, 1997, the Department published

proposed regulations to implement IDEA–97. When

these regulations are published in final, the

agreement will be amended to reflect any necessary

changes to the regulatory citations.

3Part B defines ‘‘child with a disability’’ to mean

a child ‘‘with mental retardation, hearing

impairments (including deafness), speech or

language impairments, visual impairments

(including blindness), serious emotional

disturbance (hereinafter referred to as ‘emotional

disturbance’), orthopedic impairments, autism,

traumatic brain injury, other health impairments, or

specific learning disabilities and who, by reason

thereof, needs special education and related

services.’’ 20 U.S.C. § 1401(3)(A). Under sections

301(a)(1) and (a)(2)(H) of the Department of

Education Organization Act (DEOA), 20 U.S.C.

§ 3441(a)(1) and (a)(2)(H), Congress transferred the

administration of Part B from the Commissioner of

Education to the Secretary of Education. Section

2078 of the DEOA, 20 U.S.C. § 3417, in turn

delegates responsibility for Part B to the Assistant

Secretary for Special Education and Rehabilitative

Services.

Notes: The official version of a document

is the document published in the Federal

Register.

(Authority: 20 U.S.C. 1234c and 1234f and 20

U.S.C. 1401, 1411–1420.)

Dated: July 28, 1998.

Richard W. Riley,

Secretary of Education.

Text of the Secretary’s Written Findings

and Decision

I. Introduction

The United States Department of

Education (the Department) has

determined, pursuant to 20 U.S.C.

§§ 1234c and 1234f, that the District of

Columbia Public Schools (DCPS) failed

to comply substantially with the

requirements of Part B of the

Individuals with Disabilities Education

Act (Part B), 20 U.S.C. §§ 1401, 1411–

1419, and that it is not feasible for DCPS

to achieve full compliance immediately.

The Department’s Office of Special

Education Programs (OSEP) has been

working with DCPS over a number of

years to address its serious and on-going

failure to comply with the requirements

of Part B. On February 4 and 5, 1997,

OSEP—as part of its regular monitoring

program—conducted public meetings at

which parents, advocates,

representatives of professional groups,

and concerned members of the

community provided testimony

indicating that DCPS had failed to meet

many of the requirements of Part B. The

testimony indicated that several of the

violations that had been identified in

prior OSEP monitoring reports had not

been corrected. On February 10, 1997,

OSEP met with General Julius W.

Becton, Jr., superintendent and chief

executive officer for DCPS, and

members of his staff to discuss OSEP’s

serious concerns with ongoing

compliance issues in DCPS’ special

education programs. General Becton and

his staff acknowledged that the District’s

special education programs did not

comply with the requirements of Part B

and informed OSEP that DCPS was

developing a strategic plan to address

these violations. In a March 27, 1997

letter, General Becton informed OSEP

that he believed that developing a

compliance agreement pursuant to 20

U.S.C. 1234f would be an appropriate

course of action which would be in the

best interests of the children of the

District of Columbia.

The purpose of a Compliance

Agreement is to bring a ‘‘recipient into

full compliance with the applicable

requirements of law as soon as feasible

and not to excuse or remedy past

violations of such requirements.’’ 20

U.S.C. 1234f(a). In accordance with the

requirements of 20 U.S.C. 1234f(b)(1), a

public hearing was conducted in the

District of Columbia by Department

officials on June 18, 1997, at the Logan

Administration Building. Witnesses

representing DCPS, affected students

and parents, and other concerned

organizations testified at this hearing on

the question of whether the Department

should grant DCPS’s request to enter

into a Compliance Agreement. The

Department has reviewed this

testimony, the proposed Compliance

Agreement, and other relevant

materials.1 On the basis of this

evidence, the Department concludes,

and hereby issues written findings in

accordance with 20 U.S.C. § 1234f(b)(2),

that DCPS has met its burden of

establishing that:

(1) DCPS compliance with the Part B

requirements to ensure that a free

appropriate public education is made

available to all eligible children and

youth with disabilities in the District of

Columbia is not feasible until a future

date; and

(2) DCPS will be able to carry out the

terms and conditions of the Compliance

Agreement and come into full

compliance with the Part B

requirements within three years of the

date of this decision.

During the effective period of the

Compliance Agreement, which ends

three years from the date of this

decision, DCPS will be eligible to

receive Part B funds as long as it

complies with all the terms and

conditions of the Agreement. Any

failure by DCPS to meet these

conditions will authorize the

Department to consider the Compliance

Agreement no longer in effect. Under

such circumstances, the Department

may take any enforcement action

authorized by 20 U.S.C. § 1234c. At the

end of the effective period of the

Compliance Agreement, DCPS must be

in full compliance with Part B in order

to maintain its eligibility to receive

funds under that program. 20 U.S.C.

§ 1234c.

II. Relevant Statutory and Regulatory

Provisions

A. Part B of the Individuals With

Disabilities Education Act

Part B was passed in response to

Congress’ finding that a majority of

children with disabilities in the United

States ‘‘were either totally excluded

from schools or [were] sitting idly in

regular classrooms awaiting the time

when they were old enough to drop

out.’’ H. Rep. No. 332, 94th Cong., 1st

Sess. 2 (1975), quoted in Board of

Education v. Rowley, 458 U.S. 176, 181

(1982).2 Part B provides Federal

financial assistance to those State

educational agencies (SEAs) that

demonstrate that they meet certain

eligibility requirements, including

having in effect a policy to ensure that

‘‘a free appropriate public education

[FAPE] is available to all children with

disabilities residing in the State between

the ages of three and twenty-one * * *’’

20 U.S.C. § 1412(a)(1).3 FAPE is defined

as special education and related services

that:

(a) Have been provided at public

expense, under public supervision and

direction, and without charge,

(b) Meet the standards of the State

educational agency,

(c) Include an appropriate preschool,

elementary, or secondary school

education in the State involved, and

(d) Are provided in conformity with

the individualized education program

[IEP] required under section 614(d). [20

U.S.C. § 1401(8)]

A State also must ensure that the Part

B requirements regarding evaluations,

reevaluations, timeliness and

implementation of due process hearing

decisions, child find, and the provision

of an education in the least restrictive

environment are met. Part B requires

DCPS to ensure that:

all children with disabilities residing in the

[District of Columbia] * * * including

children with disabilities attending private

schools, regardless of the severity of their

disabilities, and who are in need of special

education and related services are identified,
41372 Federal Register / Vol. 63, No. 148 / Monday, August 3, 1998 / Notices

4The current standard for conducting initial

evaluations within a reasonable period of time in

DCPS was established by the Federal district court’s

decree in Mills v. Board of Education of the District

of Columbia, 348 F. Supp. 866, 878–79 (D.DC 1972),

which requires that a student who has been referred

for a special education evaluation must be

evaluated and placed within 50 days of referral.

Under Part B at 20 U.S.C. § 1412(a)(11), States are

required to ensure compliance with State standards

for the implementation of programs for children

with disabilities.

located, and evaluated * * * [20 U.S.C.

§ 1412(a)(3)(A)]

Moreover, a child with a disability

cannot receive an initial special

education placement until an evaluation

has been performed in accordance with

sections 614(a)(1), (b) and (c) of Part B.4

All children with disabilities must be

placed in the least restrictive

environment appropriate to their

individual needs, as required by section

612(a)(5)(A) of Part B and 34 CFR

§§ 300.550–300.556. After initial

evaluation and placement, children

with disabilities must be reevaluated at

least every three years in accordance

with sections 614(a)(2), (b) and (c) of

Part B.

As noted above, the provision of

FAPE includes special education and

related services. ‘‘Related services’’ is

defined to mean:

transportation and such developmental,

corrective, and other supportive services

(including speech-language pathology and

audiology services, psychological services,

physical and occupational therapy,

recreation, including therapeutic recreation,

social work services, counseling services,

including rehabilitation counseling,

orientation and mobility services, and

medical services, except that such medical

services shall be for diagnostic and

evaluation purposes only) as may be required

to assist a child with a disability to benefit

from special education, and includes the

early identification and assessment of

disabling conditions in children. [20 U.S.C.

§ 1401(22)]

The IEP for each child with a disability

must specify the related services which

are to be provided. 34 CFR

§ 300.346(a)(3). In order to meet its

obligation to make FAPE available,

DCPS must be able to identify, locate,

and evaluate all children with

disabilities who are in need of special

education and related services, provide

timely initial evaluations and

reevaluations, place students in the least

restrictive environment appropriate to

their individual needs and provide the

related services specified in each

student’s IEP.

DCPS must also ensure that its due

process system, which is a critical

component of Part B designed to protect

the rights of children and their parents,

meets the requirements of Part B. A final

decision must be issued no later than 45

days after receipt of a request for a due

process hearing as required by 34 CFR

§ 300.512. Independent hearing officer

determinations must be implemented

within the time frame prescribed by the

hearing determination as required by

sections 615 (f) and (i) of Part B.

B. The General Education Provisions

Act

The General Education Provisions Act

(GEPA) provides the Department with a

number of options when it determines

a recipient of Department funds is

‘‘failing to comply substantially with

any requirements of law applicable to

such funds.’’ 20 U.S.C. § 1234c. In such

cases, the Department is authorized to:

(1) Withhold further payments under

that program from the recipient,

(2) Issue a complaint to compel

compliance through a cease and desist

order,

(3) Enter into a compliance agreement

with the recipient to bring it into

compliance; and

(4) Take any other action authorized

by law. 20 U.S.C. § 1234c.

In addition, under section 616(a) of

Part B, if a State fails to comply

substantially with IDEA, the Department

is authorized to withhold, in whole or

in part, any further payments to the

State under Part B or to refer the matter

for appropriate enforcement action,

which may include referral to the

Department of Justice.

Under section 457 of GEPA, the

Department may enter into a

Compliance Agreement with a recipient

that is failing to comply substantially

with specific program requirements. 20

U.S.C. § 1234f. The purpose of a

Compliance Agreement is ‘‘to bring the

recipient into full compliance with the

applicable requirements of the law as

soon as feasible and not to excuse or

remedy past violations of such

requirements.’’ Before entering into a

Compliance Agreement with a recipient,

the Department must hold a hearing at

which the recipient, affected students

and parents or their representatives, and

other interested parties are invited to

participate. In that hearing, the recipient

has the burden of persuading the

Department that full compliance with

the applicable requirements of law is

not feasible until a future date and that

a Compliance Agreement is a viable

means for bringing about such

compliance. 20 U.S.C. § 1234f(b)(1). If,

on the basis of all the available

evidence, the Secretary determines that

compliance until a future date is

genuinely not feasible and that a

Compliance Agreement is a viable

means for bringing about such

compliance, he is to make written

findings to that effect and publish those

findings, together with the substance of

any Compliance Agreement, in the

Federal Register. 20 U.S.C.

§ 1234f(b)(2).

A Compliance Agreement must set

forth an expiration date, not later than

3 years from the date of the Secretary’s

written findings, by which time the

recipient must be in full compliance

with all program requirements. 20

U.S.C. § 1234f(c)(1). In addition, the

Compliance Agreement must contain

the terms and conditions with which

the recipient must comply during the

period that Agreement is in effect. 20

U.S.C. § 1234f(c)(2). If the recipient fails

to comply with any of the terms and

conditions of the Compliance

Agreement, the Department may

consider the Agreement no longer in

effect and may take any of the

compliance actions described

previously. 20 U.S.C. § 1234f(d).

III. Analysis

A. Overview of Issues To Be Resolved in

Determining Whether a Compliance

Agreement Is Appropriate

In deciding whether a Compliance

Agreement between the Department and

DCPS is appropriate, the Department

must first determine whether

compliance by DCPS with the Part B

requirements concerning evaluations,

reevaluations, related services,

timeliness and implementation of due

process decisions, child find and least

restrictive environment is not feasible

until a future date. 20 U.S.C. § 1234f(b).

The second issue that must be resolved

is whether DCPS will be able, within a

period of up to three years, to come into

compliance with the Part B

requirements. Moreover, not only must

DCPS come into full compliance by the

end of the effective period of the

Compliance Agreement, it must also

make steady and measurable progress

toward that objective while the

compliance agreement is in effect. If

such an outcome is not possible, then a

Compliance Agreement between the

Department and DCPS would not be

appropriate.

B. DCPS Has Failed To Comply

Substantially With Part B

OSEP has been working with DCPS

over a number of years to address its

serious and on-going failure to comply

with the requirements of Part B. In a

monitoring report issued on February 8,

1994, OSEP found that in several areas

DCPS was not meeting its responsibility

to ensure that its educational programs

for children with disabilities were being
Federal Register / Vol. 63, No. 148 / Monday, August 3, 1998 / Notices 41373

administered in a manner consistent

with the requirements of Part B and its

implementing regulations. OSEP found,

among other things, that DCPS did not

provide the related services specified on

a student’s IEP, place students in the

least restrictive environment, conduct

an evaluation every three years or issue

due process decisions within the

required 45 day timeline.

From March 1 through 6, 1995, OSEP

conducted a follow-up review to

determine the extent to which DCPS

was making progress towards

implementing selected corrective

actions specified in the 1994 monitoring

report. In a June 12, 1995 monitoring

report, OSEP determined that significant

problems remained with regard to least

restrictive environment requirements

and the provision of related services.

OSEP also determined that DCPS

continued to have significant problems

with ensuring that students with

disabilities are evaluated every three

years. In response to this report, DCPS

submitted a corrective action plan to

ensure that these violations would be

corrected.

On February 4 and 5, 1997, in

preparation for a monitoring visit

scheduled for the spring of 1997, OSEP

conducted public meetings at which

parents, advocates, and representatives

of professional groups provided

testimony indicating that DCPS has

failed to meet many of the requirements

of Part B. Many people testified that

DCPS was continuing to have

compliance problems in the same areas

that had been identified in the February

8, 1994 and June 12, 1995 monitoring

reports. On February 10, 1997, OSEP

met with General Becton and members

of his staff to discuss OSEP’s serious

concerns with DCPS’ ongoing

noncompliance with IDEA. There was

substantial agreement between DCPS

and OSEP regarding DCPS’ current

noncompliance with Part B and the

need to develop a comprehensive

corrective action plan. The Department

agreed to consider the possibility of

entering into a compliance agreement.

In a March 27, 1997 letter, General

Becton informed OSEP that he believed

that developing a compliance agreement

would be an appropriate course of

action which is in the best interest of

the children of the District of Columbia.

C. The Noncompliance of DCPS With

the Part B Requirements Identified in

the Compliance Agreement Cannot Be

Corrected Immediately.

On June 18, 1997, pursuant to 20

U.S.C. 1234f(b)(1), the Department

conducted a public hearing to determine

whether a compliance agreement with

DCPS is appropriate to address systemwide problems in the provision of

special education for students with

disabilities residing in the District of

Columbia. As at the February hearings,

parents, advocates, service providers,

and other interested parties testified that

DCPS was continuing to have

compliance problems in the same areas

that had been identified in previous

reports. Many commenters supported

the Department entering into a

compliance agreement with DCPS but

urged the Department to make the

agreement as specific as possible.

On January 26, 1998, DCPS reported

that on January 5, 1998, 2,331 students

who had been referred for a special

education evaluation awaited

completion of an initial assessment and

placement for longer than 50 days. As

of January 5, 1998, of the 655 hearing

requests that had been received, a final

decision had not been issued within 45

days of the request in 482 cases as

required by 34 CFR § 300.512. As of

January 5, 1998, 332 final decisions had

not been fully implemented within the

time frame prescribed by the hearing

determination. These numbers are

evidence of the magnitude of the

problems faced by DCPS.

Through the monitoring process and

the public hearing, the Department has

learned that DCPS’s difficulties in

complying with the requirements of Part

B are the outgrowth of a number of

complex and long-term causes including

an inadequate management system for

its special education program. At the

public hearing, DCPS itself identified

inadequate management and several

other reasons why compliance cannot

be achieved until a future date. These

reasons include poor information

management systems, lack of staff

training, inappropriate staff allocation

and lack of appropriate programs.

All parties who testified at the public

hearing, including DCPS, agreed that

DCPS must implement an effective

system of managing its special

education program. The sheer

magnitude of the problem faced by

DCPS leads the Department to conclude

that DCPS will not be able to come into

compliance with the Part B

requirements until a future date. This

conclusion is consistent with the

testimony of all of the witnesses at the

public hearing.

D. DCPS Can Meet the Terms and

Conditions of a Compliance Agreement

and Come Into Full Compliance With

the Requirements of Part B Within Three

Years

The Chief Executive Officer, General

Julius W. Becton, Jr., pledged to rebuild

the special education division of DCPS.

Already, specific steps have been taken,

or are in the process of being planned,

to realize this goal. DCPS has developed

a strategic plan designed to reorganize

its special education division and

address the Part B requirements for

which DCPS is currently not in

compliance. DCPS has budgeted a total

increase in resources dedicated to

special education of $20 million for the

1998–99 school year.

DCPS’s special education division is

currently undergoing a reorganization

and is planning to hire a team of three

specialists to coordinate special

education. In the fall of 1997, DCPS

completed new position descriptions

with performance expectations and

standards for all staff designed to

improve accountability and assure

quality. In addition, DCPS has

reallocated its staff to ensure more

effective use of its current personnel. A

Child Find Liaison has been assigned

and a child find hotline has been

established.

DCPS issued a request for proposals

(RFP) in June 1997 for special education

assessment services. DCPS is in the

process of recruiting additional related

service providers. DCPS has allocated

additional resources to ensure that due

process hearings can be conducted

within the 45 day timeline. DCPS is

planning to hire five additional

administrative law judges to conduct

due process hearings and four

additional lawyers to represent DCPS at

hearings. A mediation process to meet

the requirement of section 615(e) of Part

B is being developed.

DCPS is conducting additional staff

development training so that they can

serve students more inclusively at local

schools. DCPS has expanded its early

childhood program to serve an

additional 40 preschool children and

under the terms of the agreement must

continue to expand its preschool

programs. New programs have been

developed for high school age students

with learning disabilities and

elementary school aged students who

have emotional disturbance and DCPS’

strategic plan includes continuing to

build up its program capabilities. The

steps DCPS has already taken, its

commitment of resources, and the plans

it has developed for further action,

demonstrate that DCPS has the capacity

to meet the terms and conditions of the

Compliance Agreement.

Finally, the Compliance Agreement

sets out a very specific schedule, that

DCPS must meet during the next three

years, for attaining compliance with the

many requirements of Part B. Therefore,

DCPS is committed not only to being in
41374 Federal Register / Vol. 63, No. 148 / Monday, August 3, 1998 / Notices

1This agreement references the regulations in

effect on the date that this agreement took effect. On

October 22, 1997, the Department published

proposed regulations to implement the Individuals

with Disabilities Education Act Amendments of

1997. When these regulations are published in final,

the agreement will be amended to reflect any

necessary changes to the regulatory citations. These

amendments will not, however, alter the effective

period of this agreement.

full compliance with Part B within three

years, but to meeting a stringent, but

reasonable, schedule for reducing the

number of children with disabilities in

the District who have not received the

evaluations, reevaluations, and related

services to which they are entitled and

for reducing the number of hearing

decisions that have not been issued

within the 45 day timeline and the

number of decisions that have not been

implemented. The Compliance

Agreement also sets out data collection

and reporting procedures that DCPS

must follow. These provisions will

allow the Department to ascertain

promptly whether or not DCPS is

meeting each of its commitments under

the Compliance Agreement. The

Compliance Agreement, because of the

obligations it imposes on DCPS, will

provide the Department with the

information and authority it needs to

protect the Part B rights of the District

of Columbia’s children.

The task of ensuring that all children

with disabilities receive the rights and

protections to which they are entitled

under IDEA is difficult given the longstanding problems in DCPS’ special

education program. However, the

Department has determined that with

the commitment of the new leadership

to meet the terms and conditions of this

agreement, the process of improving

special education services for all

students with disabilities residing in the

District of Columbia can begin

immediately. For these reasons, the

Department concludes that DCPS can

meet all the terms and conditions of the

Compliance Agreement and come into

full compliance with Part B within three

years.

IV. Conclusion

For the foregoing reasons, the

Department finds the following: (1) That

full compliance by DCPS with the

requirements of Part B is not feasible

until a future date, and (2) that DCPS

can meet the terms and conditions of

the attached Compliance Agreement and

come into full compliance with the

requirements of Part B within three

years of the date of this decision.

Therefore, the Department determines

that it is appropriate for this agency to

enter into a Compliance Agreement with

DCPS. Under the terms of 20 U.S.C.

§ 1234f, that Compliance Agreement

becomes effective on the date of this

decision.

Dated: March 10, 1998.

Richard W. Riley,

Secretary of Education.

Text of the Binding Provisions of the

Compliance Agreement—Compliance

Agreement Under Part B of the

Individuals With Disabilities Education

Act Between the United States

Department of Education and the

District of Columbia Public Schools

Introduction

The Office of Special Education

Programs of the United States

Department of Education (OSEP)

conducted public hearings during the

week of February 3, 1997 regarding the

District of Columbia Public Schools

(DCPS’) implementation of Part B of the

Individuals with Disabilities Education

Act (Part B of IDEA).1 Those hearings,

and input from representatives of DCPS,

lead OSEP to raise the possibility of the

development of a compliance agreement

to bring DCPS into full compliance with

applicable portions of the law as soon

as feasible. In a letter dated March 27,

1997, General Julius Becton, Jr., DCPS’

Chief Executive Officer, confirmed

DCPS’ interest in developing a

compliance agreement, believing that

the execution of such an agreement

would be in the best interests of the

children of the District of Columbia.

Pursuant to this Compliance

Agreement under 20 U.S.C. § 1234f,

DCPS must be in full compliance with

the requirements of Part B no later than

three years from the date of the

Department’s written findings, a copy of

which is attached to, and incorporated

by reference into, this Agreement.

Specifically, DCPS must ensure and

document that no later than three years

after the effective date of this

Agreement, the following compliance

goals are achieved:

1. An initial evaluation that meets the

requirements of sections 614(a)(1), (b),

and (c) of Part B of IDEA is completed

for all children with disabilities, and an

appropriate placement is made within

the maximum number of days

established by DCPS’ policy, and a

reevaluation that meets the

requirements of sections 614(a)(2), (b),

and (c) of Part B of IDEA, is completed

for all children with disabilities no later

than 36 months after the date on which

the most recent previous evaluation or

reevaluation was completed;

2. All children with disabilities

receive the related services specified in

their individualized education program

as required by section 602(8) of Part B

of IDEA and 34 CFR § 300.350;

3. A final decision is issued not later

than 45 calendar days after the receipt

of a request for a due process hearing as

required by 34 CFR 300.512, except in

cases where the requester voluntarily

withdraws the request (e.g., in favor of

mediation, because the issues

motivating the request were addressed,

and/or a settlement has been reached);

4. Independent hearing officer

determinations are implemented within

the time-frame prescribed by the hearing

determination as required by sections

615(f) and (i) of Part B of IDEA;

5. A Child-Find system is established

which identifies and locates all children

with disabilities, including those

transitioning from Part H programs, who

are in need of special education and

related services as required by section

612(a)(3) of Part B of IDEA;

6. All children with disabilities are

placed in the least restrictive

environment appropriate to their

individual needs, as required by section

612(a)(5)(A) of Part B of IDEA and 34

CFR 300.550–300.556;

7. State complaint procedures which

meet the requirements of 34 CFR

300.660–300.662 are implemented;

8. Beginning no later than age 16, and

at a younger age, if determined

appropriate, a statement of needed

transition services is included in each

student’s individualized education plan

(IEP) as required by 34 CFR 300.346(b)

and if a purpose of the IEP meeting is

consideration of transition services, that

all required participants have been

invited and participate as required by 34

CFR 300.344(c) and that a notice

containing all required content is issued

as required by 34 CFR 300.345(b)(2);

9. A State Advisory Panel is

established which meets the

requirements of section 612(a)(21) of

Part B of IDEA;
Federal Register / Vol. 63, No. 148 / Monday, August 3, 1998 / Notices 41375

2 DCPS and the Department agree that if the time

line for initial evaluation and placement is

modified by the Court, the Compliance Agreement

will be amended to incorporate the revised time

line.

10. Procedures that meet the

requirements of section 615(b)(2) of Part

B of IDEA are implemented to protect

the rights of the child whenever the

parents of the child are not known, the

agency cannot, after reasonable efforts,

locate the parents, or the child is a ward

of the State; and

11. Sufficient numbers of personnel

are available to meet the needs of

students with disabilities who are

limited English proficient.

During the period that this

Compliance Agreement is in effect,

DCPS is eligible to receive Part B funds

if it complies with the terms and

conditions of this Agreement, including

the provisions of Part B of IDEA, as

amended by the IDEA Amendments of

1997 (IDEA–97) and other applicable

Federal statutory and regulatory

requirements.

Specifically, the Compliance

Agreement sets forth commitments and

timetables for DCPS to meet in coming

into compliance with its Part B

obligations. In addition, DCPS is

required to submit documentation

concerning its compliance with these

goals and timetables. Any failure by

DCPS to comply with the goals,

timetables, documentation, or other

provisions of the Compliance

Agreement, including the reporting

requirements, will authorize the

Department to consider the agreement

no longer in effect. Under such

circumstances, the Department may take

any action authorized by 20 U.S.C.

§ 1234c, including the withholding of

Part B funds from DCPS. This

Agreement will take effect on the day

the Department issues its written

findings of fact, pursuant to the

requirements of 20 U.S.C. § 1234f, and

will expire three years from that date.

The following pages of this

compliance agreement address topic

areas of DCPS’ non-compliance, and

include goals, verifiable outcomes,

schedules for levels of compliance over

the three year agreement, and DCPS’

‘‘Action Plan’’ for achieving

compliance. Since several of the

compliance goal areas are inter-related,

some ‘‘Action Plan’’ items are

duplicated between topic areas. Please

note that ‘‘Action Plan’’ items for each

goal are provided by DCPS for

informational purposes only, to

demonstrate DCPS’ commitment to

coming into full compliance with IDEA.

DCPS and the Department agree that

‘‘Action Plan’’ items (activities, time

line/status, responsibility, milestone/

verification, and special resources) shall

not be construed to bind DCPS legally

or otherwise. DCPS, however, is bound

to comply with all other aspects of this

Agreement.

Topic 1.0: Initial Evaluations and

Re-evaluations

Current Status: DCPS’ current policy,

as set forth in the Mill’s decree, is that

a student who has been referred for a

special education evaluation must be

evaluated and placed within 50 days of

the referral. On January 5, 1998, 2,331

students who had been referred for a

special education evaluation awaited

completion of an initial assessment and

placement for longer than 50 days.

Additionally, on March 31, 1998, 2,529

(data received March 31, 1998) students

with disabilities will not have been reevaluated for more than 36 months

following their initial or most recent

previous re-evaluation. Goals are:

Goal 1.0

(a) To ensure that an initial evaluation

that meets the requirements of sections

614(a)(1), (b) and (c) of Part B of IDEA

is completed for all children with

disabilities and an appropriate

placement is made within 50 days after

the child is referred 2; and,

(b) To ensure that a re-evaluation that

meets the requirements of sections

614(a)(2), (b) and (c) of Part B of IDEA

is completed for all children with

disabilities no later than 36 months after

the date on which the most recent

previous evaluation or re-evaluation

was completed.

DCPS will gather baseline data

regarding the number of students (yy)

for the re-evaluation goal, and provide

that data to the Department by March

31, 1998 (data received March 31, 1998

and included in Table B, below).

Overall Measurable Outcomes and

Verification for Goal 1.0 (a): Initial

Evaluations

(a) Every week, DCPS will prepare an

internal report which includes the name

of each child referred for initial

evaluation, and the number of calendar

days since the referral, the status of that

referral (complete or incomplete), and

the component assessments remaining if

the evaluation is incomplete and/or

placement has not been made.

(b) DCPS shall make these internal

reports available to OSEP if requested

by that office.

(c) On a periodic basis, beginning

with the period ending June 30, 1998,

DCPS will submit to the Department—

at the times and in the manner specified

in Table A—a summary of the internal

reports for the relevant reporting period.

The summary will include:

• The number of children referred for

initial evaluation, as of the start of the

reporting period, whose initial

evaluation and placement have not been

completed within the required time

period;

• The number of children referred for

initial evaluations during the reporting

period;

• The number of children for whom

an initial evaluation and placement was

completed during the reporting period;

• The number of referred children

who did not receive an initial

evaluation and placement within the

required time period at the conclusion

of the reporting period.

(d) Table A sets out, on a periodic

basis, DCPS’ commitment for

incremental reduction to zero of the

number of children waiting for initial

evaluations and placements for longer

than 50 days after referral. For children

referred prior to January 5, 1998, this

number will be reduced to zero by

March 31, 1999. For children referred

on or after January 5, 1998, this number

will be reduced to zero by March 31,

2000. DCPS is obligated not only to

meeting these final commitments to

reduce the number of children awaiting

timely initial evaluations and

placements to zero, but also to meeting

all of the periodic commitments for

reducing that number set out in Table A.

(e) DCPS shall provide OSEP, by April

30, 1998, its policies and procedures for

ensuring that evaluations and

reevaluations are conducted in

conformity with the evaluation

procedures required in section 614(b)

and (c) of Part B of IDEA.
41376 Federal Register / Vol. 63, No. 148 / Monday, August 3, 1998 / Notices

TABLE A.—DCPS PERIODIC REPORTS TO THE DEPARTMENT: REQUIRED LEVELS AND TIMELINES FOR ACHIEVING AND

DOCUMENTING PROGRESS TOWARD FULL COMPLIANCE (INITIAL EVALUATIONS AND PLACEMENTS)

Number of children awaiting completion of initial evaluation and placements for more than 50 days

Date of reporting period Referrals prior

to 1/5/98 Referrals 1/5/98 and after

Date report

submitted to

department

1/5 to 6/30/98 .................................................................................... 1,748 85% of referrals ........................................ 7/15/98

7/1 to 9/30/98 .................................................................................... 932 75% of referrals ........................................ 10/15/98

10/1 to 12/31/98 ................................................................................ 233 60% of referrals ........................................ 1/15/98

1/1 to 3/31/99 .................................................................................... 0 45% of referrals ........................................ 4/15/99

4/1 to 6/30/99 .................................................................................... 0 30% of referrals ........................................ 7/15/99

7/1 to 9/30/99 .................................................................................... 0 15% of referrals ........................................ 10/15/99

10/1 to 12/31/99 ................................................................................ 0 5% of referrals .......................................... 1/15/00

1/1 to 3/31/00 .................................................................................... 0 0 ................................................................ 4/15/00

4/1 to 6/30/00 .................................................................................... 0 0 ................................................................ 7/15/00

7/1 to 9/30/00 .................................................................................... 0 0 ................................................................ 10/15/00

10/1 to 12/31/00 ................................................................................ 0 0 ................................................................ 1/15/01

1/1 to 3/31/01 .................................................................................... 0 0 ................................................................ 4/15/01

Overall Measurable Outcomes and

Verification for Goal 1.0 (b)

Reevaluations

(a) Within the first week of each

month, DCPS will prepare an internal

report of the name of each child for

whom an initial evaluation, or the most

recent re-evaluation, was completed.

Children for whom the initial evaluation

or re-evaluation was completed more

than 36 months prior will be

highlighted in the report.

(b) Appended to the above report,

DCPS will note which children from the

previous month’s report have been reevaluated during that month, as well as

those cases which are still pending.

(c) DCPS shall make these internal

reports available to OSEP if requested

by that office.

(d) Within fifteen (15) calendar days

following the end of each reporting

period commencing with the reporting

period ending June 30, 1998, DCPS will

submit to the Department a summary of

the monthly reports for the period,

including:

• The number of children who have

not received re-evaluations within 36

months at the start of the reporting

period;

• The number of children who,

during the reporting period, have been

identified as not receiving reevaluations within 36 months;

• The number of students for whom

a re-evaluation was completed during

the reporting period;

• The number of students whose reevaluation is still pending for more than

36 months at the end of the reporting

period.

(e) Table B sets out, on a periodic

basis, DCPS’’ commitment for

incremental reduction to zero of the

number of children who have not

received timely re-evaluations. For

children whose re-evaluations was due

on or before January 5, 1998, this

number will be reduced to zero by

March 31, 1999. For children whose reevaluations will be due after January 5,

1998, this number will be reduced to

zero by March 31, 2000. DCPS is

obligated not only to meeting these final

commitments to reduce the number of

children awaiting timely re-evaluations

to zero, but also to meeting all of the

periodic commitments for reducing that

number set out in Table B.

TABLE B.—DCPS PERIODIC REPORTS TO THE DEPARTMENT: REQUIRED LEVELS AND TIMELINES FOR ACHIEVING AND

DOCUMENTING PROGRESS TOWARD FULL COMPLIANCE (RE-EVALUATIONS)

Students awaiting re-evaluation more than 36 months after initial evaluation or last re-evaluation

Date of reporting period Re-evaluation due 1/5/98 or before Re-evaluation due after 1/5/98

Date report

submitted to

department

1/5 to 6/30/98 ............................................ 1,897 (data rec’d 3/31/98) ...................... 85% of Re-Evaluations due .................... 7/15/98

7/1 to 9/30/98 ............................................ 1,012 (data rec’d 3/31/98) ...................... 75% of Re-Evaluations due .................... 10/15/98

10/1 to 12/31/98 ........................................ 253 (data rec’d 3/31/98) ......................... 60% of Re-Evaluations due .................... 1/15/99

1/1 to 3/31/99 ............................................ 0 .............................................................. 45% of Re-Evaluations due .................... 4/15/99

4/1 to 6/30/99 ............................................ 0 .............................................................. 30% of Re-Evaluations due .................... 7/15/99

7/1 to 9/30/99 ............................................ 0 .............................................................. 15% of Re-Evaluations due .................... 10/15/99

10/1 to 12/31/99 ........................................ 0 .............................................................. 5% of Re-Evaluations due ...................... 1/15/00

1/1 to 3/31/00 ............................................ 0 .............................................................. 0 .............................................................. 4/15/00

4/1 to 6/30/00 ............................................ 0 .............................................................. 0 .............................................................. 7/15/00

7/1 to 9/30/00 ............................................ 0 .............................................................. 0 .............................................................. 10/15/00

10/1 to 12/31/00 ........................................ 0 .............................................................. 0 .............................................................. 1/15/01

1/1 to 3/31/01 ............................................ 0 .............................................................. 0 .............................................................. 4/15/01

Topic 2.0: Related Services

Current Status: As of January 5, 1998,

DCPS has not provided related service

in accordance with students’ IEP to

1,055 (data received March 31,1998)

students.

DCPS currently lacks a special

education student information system,

and consequently can not provide

adequate baseline data regarding the

total number of students (zz) who do not

receive all of the related services called

for within their IEPs. DCPS will capture
Federal Register / Vol. 63, No. 148 / Monday, August 3, 1998 / Notices 41377

this baseline data, and provide it to the

Department of Education no later than

March 31, 1998, using the following

methods.

• DCPS’ related service

(‘‘Intervention’’) staff members will,

with assistance from school principals,

identify the list of all students entitled

to receive a related service, and record

all of those students’ names in a format

which the Special Education Division

provides (the format is included as

Attachment P to this Compliance

Agreement).

• Twice each month, intervention

staff will record, on the provided

format, the names of those students to

whom they have provided service/

therapy, the names of students who

missed service/therapy due to absences,

and the names of students (if any) who

could not be scheduled to receive

related service/therapy due to

inadequate schedule/time.

• Each related service

(‘‘Intervention’’) staff member will total

the number of such students who do not

receive service/therapy due to

inadequate schedule/time, and report

the result to their Special Education

Division supervisor. Each supervisor

will summarize the reports for all

intervention staff, and the Deputy

Director for Service Delivery will

summarize the data for DCPS as a

whole.

• When a new student is placed in a

school’s special education program, that

student shall be added to the list of

students entitled to receive related

services at that school, consistent with

the services called for in the student’s

IEP. Similarly, when a student transfers,

graduates or withdraws, the student’s

name shall be deleted from the list.

Such additions and deletions shall be

summarized in each report by each

Intervention staff member.

The number of students who could

not be scheduled to receive related

service/therapy due to inadequate

related service provider schedule/time

shall be reported initially to the

Department of Education, and shall

form the source of data from which will

be used for the reports described below.

An initial report of all students who are

not receiving all related services

specified within their IEPs will be made

prior to March 31, 1998, and those

students will make up the initial count

of students shown as ‘‘zz’’ in Table C

below.

Goal 2.0

To ensure that all children with

disabilities receive the related services

specified in their individual education

program as required by section 602(8) of

Part B of IDEA and 34 CFR 300.350.

Overall Measurable Outcomes and

Verification for Goal 2.0 (Related

Services)

(a) Within the first week of each

month, DCPS will prepare an internal

report for each type of related service

with the following content:

i. Children, by name, whose IEPs call

for a related service, but who are not yet

assigned to the schedule of a specific

DCPS provider of that service (a child

whose IEP calls for two different related

services, but who is not receiving either

service, will appear separately on the

reports for each of those related

services). These children will be listed

in order of the date on which their

original or updated IEP calling for the

service was signed.

ii. Children, by name, who, for

whatever reason, have been removed

from the schedule of a DCPS related

service provider (for example, because

of the resignation of the service

provider, or because of the transfer of

the student away from the school where

that provider works, etc.), and who have

not immediately been reassigned to the

schedule of another service provider.

iii. Children, by name, who within the

previous month have been assigned to

the schedule of a specific DCPS service

provider (and who consequently have

been removed from the above listing of

unassigned children).

iv. DCPS related service providers

who are scheduled to serve children for

fewer hours per week than is provided

for by DCPS policy for that service, and

who consequently may be available to

serve additional children.

(b) DCPS shall make these internal

reports available to OSEP if requested

by that office.

(c) Within fifteen calendar days

following the end of each reporting

period, DCPS will provide to the

Department a report with the following

content:

i. The number of children who are not

receiving all the related services

specified in their IEP as of the start of

the reporting period;

ii. The number of children identified

during the reporting period as not

receiving all the related services

specified in their IEPs;

iii. The number of children that,

during the reporting period, began

receiving all the related services

specified in their IEPs; and

iv. The number of children not

receiving all related services specified

in their IEPs at the end of the reporting

period.

(d) Table C sets out, on a periodic

basis, DCPS’’ commitment for

incremental reduction to zero of the

number of children not receiving all the

related services specified in their IEPs.

For the number of children who were

determined eligible for special

education prior to January 5, 1998, but

not receiving all of the related services

specified within their IEPs, this number

will be reduced to zero by December 31,

1999. For the number of students who

were determined eligible for special

education on or after January 5, 1998,

but not receiving all of the related

services specified within their IEPs, this

number will be reduced to zero by

March 31, 2000. DCPS is obligated not

only to meeting this final commitment

to reduce the number of children not

receiving required related services to

zero, but also to meeting all of the

periodic commitments for reducing the

number set out in Table C.

(e) By April 30, 1998, DCPS must

establish, and submit to OSEP for

approval, a method to verify that those

children who have been assigned to the

schedule of a specific DCPS service

provider are in fact receiving the

required services.

TABLE C.—DCPS PERIODIC REPORTS TO THE DEPARTMENT REQUIRED LEVELS AND TIME LINES FOR ACHIEVING AND

DOCUMENTING PROGRESS TOWARD FULL COMPLIANCE (RELATED SERVICES)

Date of reporting period

Number of children not receiving related

services provided for in their IEP (students eligible prior to 1/5/98)

Number of children not receiving related

services provided for in their IEP program (students eligible on or after 1/5/

98)

Date report

submitted to

department

1/5 to 6/30/98 ............................................ 950 (data rec’d 3/31/98) ......................... 95% of newly eligible students ............... 7/15/98

7/1 to 9/30/98 ............................................ 791 (data rec’d 3/31/98) ......................... 85% of newly eligible students ............... 10/15/98

10/1 to 12/31/98 ........................................ 580 (data rec’d 3/31/98) ......................... 70% of newly eligible students ............... 1/15/99

1/1 to 3/31/99 ............................................ 369 (data rec’d 3/31/98) ......................... 55% of newly eligible students ............... 4/15/99

4/1 to 6/30/99 ............................................ 211 (data rec’d 3/31/98) ......................... 40% of newly eligible students ............... 7/15/99
41378 Federal Register / Vol. 63, No. 148 / Monday, August 3, 1998 / Notices

TABLE C.—DCPS PERIODIC REPORTS TO THE DEPARTMENT REQUIRED LEVELS AND TIME LINES FOR ACHIEVING AND

DOCUMENTING PROGRESS TOWARD FULL COMPLIANCE (RELATED SERVICES)—Continued

Date of reporting period

Number of children not receiving related

services provided for in their IEP (students eligible prior to 1/5/98)

Number of children not receiving related

services provided for in their IEP program (students eligible on or after 1/5/

98)

Date report

submitted to

department

7/1 to 9/30/99 ............................................ 106 (data rec’d 3/31/98) ......................... 25% of newly eligible students ............... 10/15/99

10/1 to 12/31/99 ........................................ 0 .............................................................. 10% of newly eligible students ............... 1/15/00

1/1 to 3/31/00 ............................................ 0 .............................................................. 0 .............................................................. 4/15/00

4/1 to 6/30/00 ............................................ 0 .............................................................. 0 .............................................................. 7/15/00

7/1 to 9/30/00 ............................................ 0 .............................................................. 0 .............................................................. 10/15/00

10/1 to 12/31/00 ........................................ 0 .............................................................. 0 .............................................................. 1/15/01

1/1 to 3/31/01 ............................................ 0 .............................................................. 0 .............................................................. 4/15/01

Topic 3.0: Due Process Hearing

Timeliness

Current Status: For a significant

portion of due process hearing requests

received by DCPS on behalf of students

with disabilities, a final decision is not

issued within 45 days after receipt of

the request. As of January 5, 1998, of the

655 hearing requests that had been

received, a final decision had not been

issued within 45 days of the request in

482 cases.

Goal 3.0

To ensure that a final decision is

issued, not later than 45 calendar days

after the receipt of a request for a due

process hearing as required by 34 CFR

300.512, except in cases where the

requester voluntarily withdraws the

request (including, but not limited to,

instances of withdrawal in favor of

mediation, because the issues

motivating the request were addressed,

and/or where a settlement has been

reached) and/or where a hearing officer

grants a request for an extension by a

party.

Overall Measurable Outcomes and

Verifications for Goal 3.0

(a) Within the first week of each

month, DCPS will prepare an internal

report with the following content:

i. Name of each child for whom a due

process hearing has been requested, and

the date that the request was received in

writing.

ii. Name of each child for whom a due

process hearing was held and a final

decision was issued, and the date of the

final decision.

iii. Name of each child for whom a

request for a due process hearing was

withdrawn, the date of the withdrawal,

and a brief note as to disposition.

(b) DCPS shall make these internal

reports available to OSEP if requested

by that office.

(c) Within fifteen calendar days

following the end of each reporting

period, DCPS will prepare and submit a

report to the Department which

includes:

i. The number of pending hearing

requests, as of the start of the reporting

period, for which a final decision has

not been issued within 45 days of the

request;

ii. The number of pending hearing

requests which, during the course of the

reporting period, are added to the list of

hearing requests for which a final

decision has not been issued within 45

days of the request;

iii. The number of final decisions

issued during the reporting period for

hearing requests that have been pending

for more than 45 days;

iv. The number of pending hearings

requests, at the conclusion of the

reporting period, for which a final

decision has not been issued within 45

days of the request.

(d) Table D sets out, on a periodic

basis, DCPS’ commitment for

incremental reduction to zero of the

number of due process hearing requests

which have been pending for more than

45 days, which have not been

withdrawn, and for which a final

decision has not been issued. DCPS is

committed to reducing this number to

zero by December 31, 1998. DCPS is not

only committed to meeting this final

commitment, but also to meeting all of

the periodic commitments for reducing

that number set out in Table D.

(e) DCPS must submit to the

Department, by March 31, 1998, the

mediation procedures that it has

developed under Section VII.F of its

Strategic Plan to meet the requirements

of section 615(e) of Part B of IDEA.

TABLE D.—DCPS PERIODIC REPORTS TO THE DEPARTMENT: REQUIRED LEVELS AND TIME LINES FOR ACHIEVING AND

DOCUMENTING PROGRESS TOWARD FULL COMPLIANCE (DUE PROCESS HEARING TIMELINESS)

Date of reporting period

Number of

hearing requests which

have been

pending for 45

days or more,

have not been

withdrawn,

and for which

a final decision has not

been issued

Date report

submitted to

department

1/5 to 6/30/98 ........................................................................................................................................................... 361 7/15/98

7/1 to 9/30/98 ........................................................................................................................................................... 217 10/15/98

10/1 to 12/31/98 ....................................................................................................................................................... 0 1/15/99

1/1 to 3/31/99 ........................................................................................................................................................... 0 4/15/99

4/1 to 6/30/99 ........................................................................................................................................................... 0 7/15/99

7/1 to 9/30/99 ........................................................................................................................................................... 0 10/15/99
Federal Register / Vol. 63, No. 148 / Monday, August 3, 1998 / Notices 41379

TABLE D.—DCPS PERIODIC REPORTS TO THE DEPARTMENT: REQUIRED LEVELS AND TIME LINES FOR ACHIEVING AND

DOCUMENTING PROGRESS TOWARD FULL COMPLIANCE (DUE PROCESS HEARING TIMELINESS)—Continued

Date of reporting period

Number of

hearing requests which

have been

pending for 45

days or more,

have not been

withdrawn,

and for which

a final decision has not

been issued

Date report

submitted to

department

10/1 to 12/31/99 ....................................................................................................................................................... 0 1/15/00

1/1 to 3/31/00 ........................................................................................................................................................... 0 4/15/00

4/1 to 6/30/00 ........................................................................................................................................................... 0 7/15/00

7/1 to 9/30/00 ........................................................................................................................................................... 0 10/15/00

10/1 to 12/31/00 ....................................................................................................................................................... 0 1/15/01

1/1 to 3/31/01 ........................................................................................................................................................... 0 4/15/01

Objectives for Goal 3.0: Due Process

Hearing Time Line

3.1 Reduce the need for hearings by

developing new programs, improving

evaluations and improving related

service delivery.

3.2 Reduce demand for hearing

requests by establishing a new

mediation process.

3.3 Increase accountability for

hearing time lines by computerizing

records and providing ongoing

information to DCPS’’ Legal and Special

Education Division.

Topic 4.0: Hearing Determination

Implementation

Current Status: As of January 5, 1998,

332 student hearing determinations

remained outstanding without having

been fully implemented within the time

frame set out by the hearing

determination.

Goal 4.0

To ensure that independent hearing

officer determinations are implemented

within the time-frame prescribed by the

hearing determination, or the different

time-frame agreed to in writing by the

parent or guardian and submitted to the

hearing officer as required by sections

615 (f) and (i) of Part B of IDEA.

Overall Measurable Outcomes and

Verification for Goal 4.0

(a) Within the first week of each

month, DCPS will prepare an internal

report:

i. Date each due process hearing

decision was filed, and the case number.

ii. Type of hearing (e.g., denial,

appropriateness, etc.).

iii. Actions required and Time lines

set out by the determination.

iv. Date each action was completed, or

a notation that the action remains

incompleted. Actions which remain

uncompleted beyond the date required

within the order will be highlighted

within the report.

v. Date the hearing order was fully

implemented (i.e., all actions

completed). Note that all hearing cases

will continue to be reported until it has

been reported that the hearing order was

fully implemented.

vi. The number of cases in which a

different time-frame is agreed to in

writing by the parent or guardian and

submitted to the hearing officer and

DCPS’’ basis for requesting a different

time-frame.

(b) DCPS shall make these internal

reports available to OSEP if requested

by that office.

(c) Within fifteen calendar days

following the end of each reporting

period, DCPS will prepare and submit a

report to the Department that includes:

i. The number of hearing officer

determinations, as of the start of the

reporting period, that have not been

fully implemented;

ii. The number of hearing officer

determinations which, during the

course of the reporting period, are

identified as not having been fully

implemented;

iii. The number of hearing officer

determinations which, during the

course of the reporting period, have

been fully implemented;

iv. The number of hearing officer

determinations which, as of the

conclusion of the reporting period, have

not been fully implemented.

(d) Table E sets out, on a periodic

basis, DCPS’’ commitment for

incremental reduction to zero of the

number of hearing officer

determinations that have not been fully

implemented consistent with the

hearing decision. DCPS is committed to

reducing this number to zero by

December 31, 1998. DCPS is obligated

not only to meeting this final

commitment, but also to meeting all of

the periodic commitments for reducing

the numbers set out in Table E.

TABLE E.—DCPS PERIODIC REPORTS TO THE DEPARTMENT: REQUIRED LEVELS AND TIME LINES FOR ACHIEVING AND

DOCUMENTING PROGRESS TOWARD FULL COMPLIANCE (HEARING DETERMINATION IMPLEMENTATION)

Date of reporting

Number of

hearing officer

determinations

not fully implemented

Date report

period submitted to department

1/5 to 6/30/98 ........................................................................................................................................................... 266 7/15/98

7/1 to 9/30/98 ........................................................................................................................................................... 199 10/15/98

10/1 to 12/31/98 ....................................................................................................................................................... 0 1/15/99

1/1 to 3/31/99 ........................................................................................................................................................... 0 4/15/99

4/1 to 6/30/99 ........................................................................................................................................................... 0 7/15/99
41380 Federal Register / Vol. 63, No. 148 / Monday, August 3, 1998 / Notices

TABLE E.—DCPS PERIODIC REPORTS TO THE DEPARTMENT: REQUIRED LEVELS AND TIME LINES FOR ACHIEVING AND

DOCUMENTING PROGRESS TOWARD FULL COMPLIANCE (HEARING DETERMINATION IMPLEMENTATION)—Continued

Date of reporting

Number of

hearing officer

determinations

not fully implemented

Date report

period submitted to department

7/1 to 9/30/99 ........................................................................................................................................................... 0 10/15/99

10/1 to 12/31/99 ....................................................................................................................................................... 0 1/15/00

1/1 to 3/31/00 ........................................................................................................................................................... 0 4/15/00

4/1 to 6/30/00 ........................................................................................................................................................... 0 7/15/00

7/1 to 9/30/00 ........................................................................................................................................................... 0 10/15/00

10/1 to 12/31/00 ....................................................................................................................................................... 0 1/15/01

1/1 to 3/31/01 ........................................................................................................................................................... 0 4/15/01

Objectives for Goal 4.0: Hearing Order

Determination Implementation

4.1 Reduce the need for hearings

(and thus the need for implementing

hearing determinations) by developing

new programs and initiatives and by

implementing a mediation process.

4.2 Improve implementation of

assessment-related hearing order

determinations (HODs) by prioritizing

evaluations, reorganizing staff and

supervision, and establishing a central

assessment scheduling/tracking method.

4.3 Increase accountability for

implementing order determinations by

computerizing tracking and by

summarizing status in a monthly report.

Topic 5.0: Child Find

Current Status: DCPS is not

complying with its obligation to identify

and locate all children with disabilities

residing in the District of Columbia,

including children with disabilities

attending private schools, regardless of

severity of their disabilities, who are in

need of special education and related

services.

Goal 5.0

To establish a Child-Find system

which successfully identifies and

locates all children with disabilities,

including those transitioning from Part

H programs, who are in need of special

education and related services as

required by section 612(a)(3) of Part B

of IDEA.

Overall Measurable Outcomes and

Verification for Goal 5.0: Child Find

(a) Within fifteen calendar days

following the end of each reporting

period as set out in Table A above,

DCPS will provide to the Department a

report that includes:

i. A listing of the inquires received

through DCPS’ Child Find hotline, and

a summary of the other contacts made

by Child Find staff, including the Child

Find Liaison, and the screening aides;

and

ii. Data on the number of preschool

students identified and served.

(b) DCPS shall submit a report to

OSEP every six months, from the

effective date of this Compliance

Agreement, on the activities it has

carried out during the reporting period

to implement the objectives of Goal 5.0.

The report must include:

(i) For the city wide screening event,

identified in section III.C of the Strategic

Plan, the number and location of

screening sites, the kinds of screening

tools that were used, and the number

and ages of children screened; and

(ii) For the training provided under

section VII.G of the Strategic Plan, the

dates and locations of the training

sessions, the number of participants,

and curriculum for the training.

Please see Attachment Q for the

District of Columbia’s Policy and

Procedure for transition form Part H to

Part B programs, and form for recording

child-find inquires.

Objective for Goal 5.0: Child Find

5.1 Build DCPS’ network and

capability for identifying children who

may need special education services by:

a. Implementing the initiatives

outlined in DCPS’ State Plan for IDEA;

and

b. Assigning a Child Find Liaison,

Early Childhood Coordinator, Transition

Facilitator and screening aides.

5.2 Increase school staff

understanding of responsibilities and

understanding of available resources for

child find/outreach, screening and

assessment procedures by developing

and disseminating a concise flowchart

and description.

5.3 Increase sensitivity and

familiarity of instructional support staff

regarding students with disabilities and

their instructional needs through

training.

5.4 Continue to expand early

childhood program to serve additional

preschool children.

5.5 Increase awareness of parents of

all children over the age of 2.0 years

who are enrolled in DHS Early

Intervention Programs about their

options and rights to receive services

from DCPS under IDEA Part B.

5.6 Develop policies and procedures

to ensure a smooth transition for those

individuals participating in the early

intervention program under Part H of

the IDEA who will participate in

preschool programs, including a method

for ensuring that when a child turns

three, an IEP or IFSP has been

developed and implemented by the

child’s third birthday as required by

section 612(a)(9) of Part B of IDEA.

Topic 6.0: Restrictiveness of Placements

Current Status: Currently, DCPS is not

complying with its obligation to provide

children with disabilities with the least

restrictive placement appropriate to

their individual needs. Specifically,

Board of Education rules have been

interpreted to require that the

restrictiveness of a students’ placement

is determined by the number of hours of

special education services required by

the student. For example, a student who

needs 32 hours of service each week is

typically served only in a separate

school.

Goal 6.0

To ensure that children with

disabilities are placed in the least

restrictive environment appropriate to

their individual needs as required by

section 612(a)(5)(A) of Part B of IDEA

and 34 CFR 300.550–300.556 and that

the restrictiveness of a student’s

placement (such as a self-contained

class or a separate school placement) is

not determined solely by the number of

hours of service each week which is

called for in the student’s

individualized education program.
Federal Register / Vol. 63, No. 148 / Monday, August 3, 1998 / Notices 41381

3 Implementation of the procedure to include a

statement of transition service needs beginning at

age 14 is required for IEPs beginning July 1, 1998.

Overall Measurable Outcomes and

Verification for Goal 6.0: Restrictiveness

of Placements

(a) DCPS will provide the Department

with a draft copy of its revised Board of

Education Rules by no later than April

1, 1998 and its final rule by no later

than June 30, 1998.

(b) DCPS will, on October 1 of each

year of this agreement, identify for the

Department schools which have been

identified as inclusion initiative

schools, and those which serve as local

school ‘‘satellites’’ for program and

services which had previously been

offered in more restrictive, ‘‘city-wide’’

settings.

(c) DCPS will, on June 1 of each year

of this agreement, provide the

Department with a list of placements

that are available and that represent

each type of placement on the

continuum as required by 34 CFR

300.551. DCPS must identify sufficient

existing accessible locations to provide

a continuum of appropriate placements

for all children with disabilities. If

DCPS is unable to identify sufficient

existing accessible locations to provide

a continuum, it must develop and

submit a plan, on June 1, of each year

of the agreement, to ensure accessible

locations by September 1 for each type

of placement on the continuum.

(d) DCPS will submit data on the

number of students in each type of

placement on the continuum on

November 20, 1998, November 20, 1999,

and November 20, 2000.

(e) DCPS will submit a report to OSEP

every six months, from the effective date

of this Compliance Agreement, on the

activities it has carried out during the

reporting period to implement Goal 6.0.

Objectives for 6.0: Restrictiveness of

Placements

6.1 Review and revise, if necessary,

DCPS’ continuum of services in

accordance with applicable regulations

6.2 Increase schools’ abilities to

serve students in less restrictive setting

by:

a. Implementing DCPS’ inclusion

initiative;

b. Developing and expanding

‘‘regional schools’’ abilities to serve high

school age students with learning

disabilities and elementary age students

with emotional disturbance; and

c. Developing and expanding other

programs to serve under-served

students.

6.3 Increase school system

personnel sensitivity to children with

disabilities by providing broad training/

exposure for all school system staff.

6.4 At IEP meetings, DCPS will

review the appropriateness of each

student’s placement and staff will be

trained on the proper methods for

determination of the least restrictive

environment consistent with OSEP

memorandum 95–9.

Topic 7.0: State Complaint Procedures

Current Status: DCPS is not

implementing its written procedures for

receiving and resolving any complaint

that DCPS or a public agency is

violating Part B or its regulations within

60 days.

Goal 7.0

To implement state complaint

procedures for receiving and resolving

any complaint that DCPS or a public

agency is violating Part B or its

regulations as required by 34 CFR

300.660–300.662.

Overall Measurable Outcomes and

Verification for Goal 7.0: State

Complaint Procedures

(a) DCPS must submit verification of

implementation of its state complaint

procedures by March 31, 1998.

(b) DCPS must develop a plan to

ensure that all parents and other

interested individuals are informed

regarding complaint management

procedures. The plan must include how

frequently parents and other individuals

will be informed and the materials to be

used. DCPS must submit the material to

be used to inform parents and other

interested individuals about its

complaint management procedures by

March 31, 1998.

(c) DCPS must submit quarterly

reports to OSEP that include a copy of

its complaint log verifying that

complaints are resolved within 60 days

except where there has been an

extension due to an exceptional

circumstance related to that complaint.

For each complaint for which DCPS has

determined that an exceptional

circumstance exists, DCPS must submit

to OSEP an explanation of the

exceptional circumstance. Where DCPS

finds that the allegations contained in a

complaint are true, and that

noncompliance with regard to an IDEA

requirement exists, it must ensure that

appropriate corrective action is taken in

a timely manner. These quarterly

reports are due on June 30, 1998,

September 30, 1998, December 31, 1998

and March 31, 1999.

(d) On a quarterly basis, DCPS must

submit to OSEP a sample of complaint

files for review. OSEP will select the

files to be reviewed based on the log of

complaints submitted above. These files

must be submitted on July 15, 1998,

October 15, 1998, January 15, 1999 and

April 15, 1999. DCPS is responsible for

ensuring that each file contains a

written decision to the complainant that

addresses each allegation in the

complaint. DCPS must also maintain

and make available for OSEP review

documentation demonstrating that

required corrective actions have been

implemented in a timely manner.

Topic 8.0: Transition

Current Status: DCPS is not

complying with its obligation to ensure

that no later than age 16, and at a

younger age, if determined appropriate,

a statement of needed transition services

is included in each student’s IEP and if

the purpose of the IEP meeting is

consideration of transition services that

all required participants have been

invited and participate and that a notice

containing all required content is

issued.

Goal: 8.0

Beginning no later than age 16, and at

a younger age, if determined

appropriate, a statement of needed

transition services is included in each

student’s IEP as required by 34 CFR

300.346(b) and if the purpose of the IEP

meeting is consideration of transition

services, that all required participants

have been invited and participate as

required by 34 CFR 300.344(c) and that

a notice containing all required content

is issued as required by 34 CFR

300.345(b)(2).3

Overall Measurable Outcomes and

Verification for Goal 8.0: Transition

(a) DCPS must develop effective

procedures to ensure that (1) beginning

at age 14, and younger if appropriate, a

statement of transition service needs or

beginning at age 16 (or younger, if

determined appropriate by the IEP team)

a statement of needed transition services

is included in each student’s IEP as

required by section 614(d)(1)(A)(vii) of

Part B of IDEA; (2) the student will be

invited to the IEP meeting, and if the

student does not attend, the student’s

preferences and interests will be

considered; (3) an individual

determination will be made as to

participating agency(ies) likely to be

responsible for providing or paying for

transition services and a representative

of each participating agency(ies) will be

invited to the IEP meeting. If the agency

representative does not attend, other

steps will be taken to ensure the

participation of the agency in the

planning of any transition services; and

(4) the notice utilized by public agencies
41382 Federal Register / Vol. 63, No. 148 / Monday, August 3, 1998 / Notices

to inform parents and other individuals

(e.g., students and participating

agencies) contains all required content.

(b) DCPS must submit quarterly

reports to OSEP describing the progress

it has made in ensuring compliance

with the Part B transition requirements.

These quarterly reports must be

submitted on June 30, 1998, September

30, 1998, December 31, 1998, and March

31, 1999.

(c) On a quarterly basis, DCPS must

submit a sample of IEPs and

accompanying notices for students age

16 and older. OSEP will select the IEPs

to be reviewed. These IEPs must be

submitted on July 15, 1998, October

15,1998, January 15, 1999, and April 15,

1999.

Topic 9.0: State Advisory Panel

Current Status: DCPS has not

established a State advisory panel

which meets the requirements of section

612(a)(21) of Part B of IDEA.

Goal 9.0

Establish a State advisory panel

which meets the requirements of section

612(a)(21) of Part B of IDEA.

Overall Measurable Outcomes and

Verification for Goal 9.0: State Advisory

Panel

(a) DCPS must establish a State

Advisory Panel which meets the

requirements of section 612(a)(21) of

Part B of IDEA. DCPS must submit by

May 1, 1998 documentation that a

properly constituted Advisory Panel has

been established and is meeting to carry

out the duties described in

612(a)(21)(D). Please see Attachment T

for a description of the membership and

appointing authority for the State

Advisory Panel.

Topic 10.0: Surrogate Parent Procedures

Current Status: DCPS is not

implementing its procedures to protect

the rights of the child whenever the

parents of the child are not known, the

agency cannot, after reasonable efforts,

locate the parents, or the child is a ward

of the State.

Goal 10.0

To implement procedures that meet

the requirements of section 615(b)(2) of

Part B of IDEA to protect the rights of

the child whenever the parents of the

child are not known, the agency cannot,

after reasonable efforts, locate the

parents, or the child is a ward of the

State.

Overall Measurable Outcomes and

Verification for Goal 10.0: Surrogate

Parent Procedures

(a) DCPS must implement its

procedures to protect the rights of the

child whenever the parents of the child

are not known, the agency cannot, after

reasonable efforts, locate the parents, or

the child is a ward of the State,

including the assignment of a individual

(who is not an employee of the State

education agency, or any other agency

that is involved in the education or care

of the child) to act as a surrogate for the

parents. DCPS must submit verification

of implementation of its surrogate

parent procedures by May 1, 1998.

DCPS has engaged a contractor to

recruit, train, and support surrogate

parents. Please see Attachment U for

DCPS’ work plan for recruiting and

training surrogate parents. As required,

DCPS will have final procedures for

assignment of surrogate parents, and

will submit verification of their

implementation by May 1, 1998.

Topic 11.0: Provision of Special

Education to Limited English Proficient

Students

Current Status: DCPS does not have

sufficient numbers of personnel

available to meet the needs of students

with disabilities who are limited

English proficient.

Goal 11.0

DCPS must ensure that sufficient

numbers of personnel are available to

meet the needs of limited English

proficient students.

Overall Measurable Outcomes and

Verification for Goal 11.0: Provision of

Special Education to Limited English

Proficient Students

(a) DCPS must ensure that sufficient

numbers of personnel are available to

meet the needs of students with

disabilities who are limited English

proficient (LEP). Such personnel must

include special education teachers,

psychologists, related service providers,

and other staff needed to provide

special education and related services

and to conduct evaluations and

reevaluations for these students. By

April 30, 1998, DCPS must submit a

status report of its efforts to ensure

sufficient numbers of staff to meet the

needs of LEP students. To the extent

that the report shows that DCPS does

not have sufficient numbers of

personnel, a plan to meet this goal must

accompany the report. In the event that

such a plan is necessary, the plan must

be fully implemented no later than

September 30, 1998.

Other Conditions

In addition to all of the terms and

conditions set forth above, DCPS agrees

that its continued eligibility to receive

Part B funds is predicated upon

compliance with statutory and

regulatory requirements of that program,

that have not been addressed by this

Agreement, including the IDEA

Amendments of 1997. If DCPS fails to

comply with any of the terms and

conditions of the Compliance

Agreement, the Department may

consider the Agreement no longer in

effect and may take any action

authorized by law, including the

withholding of funds or the issuance of

a cease and desist order. 20 U.S.C.

§ 1234f(d).

For the District of Columbia Public

Schools:

Dated: March 16, 1998.

General Julius W. Becton, Jr.,

Chief Executive Officer.

For the United States Department of

Education:

Dated: March 10, 1998.

Honorable Richard W. Riley,

Secretary of Education.

Date this Compliance Agreement becomes

effective (Date of Secretary Riley’s Written

Decision and Findings): March 10, 1998.

Expiration Date of this Agreement: March

10, 2001.

[FR Doc. 98–20655 Filed 7–31–98; 8:45 am]

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