Special Education: Clearer Guidance Would Enhance Implementation of Federal Disciplinary Provisions
Released: 2003-06-20T00:00:00

Letter

Background

IDEA is the primary federal law that addresses the unique needs of children with disabilities, including specific learning disabilities, speech and language impairments, mental retardation, and serious emotional disturbance. The law mandates that a free appropriate public education be made available for all eligible children with disabilities, ensures due process rights, requires an IEP for each student, and requires the placement of children with disabilities in the least restrictive environment. In school year 2002, more than 6 million children aged 3 through 21 received education services under the act at a federal cost of approximately $8 billion. In addition, state governments provided more than $48 billion in additional funding to implement the act’s requirements.

Under IDEA and the 1999 implementing federal regulations on discipline, schools must follow certain procedures to remove a student from his or her educational setting for disciplinary purposes. Specifically, schools may suspend a special education student for up to 10 school days in a given school year without providing educational services. Under the regulations, school personnel in consultation with the child’s special education teacher are required to determine the educational services needed to enable the child to appropriately progress in the general curriculum and appropriately advance toward achieving the goals set out in the child’s IEP. In addition, schools may repeatedly suspend a special education student on a short-term basis (not more than 10 days) even if the suspensions cumulatively total more than 10 school days, so long as educational services are provided to the student after the tenth suspension day in a given school year. The regulations also allow schools to remove a special education student for up to 45 days to an interim alternative educational setting if the student commits a weapons or drug violation at school or is determined by a hearing officer to be a danger to self or others. Additionally, if school officials request an extension, a hearing officer may extend this 45-day removal period.

Because school districts are provided considerable leeway in determining disciplinary placements, they choose many settings to function as disciplinary placements including, for example, in-school suspension rooms, alternative schools, out of school suspensions at home, and homebound placements. The difference between homebound placements and out-of-school suspensions at home is that homebound placements were generally used for extended periods and involved service provisions, while out-of-school suspensions at home were used for short periods of under 10 days and generally did not include the provision of instructional services. School personnel and the student’s IEP team are responsible for making decisions regarding the appropriateness of disciplinary settings. A hearing officer or court may also make the decisions.

In 2001, we studied how IDEA regulations affected the ability of schools to maintain a safe learning environment and whether regular and special education students are disciplined in a similar manner. We found that IDEA regulations played only a limited role in affecting schools’ ability to properly discipline students and that in cases of serious misconduct, regular and special education students were disciplined in a similar manner. Although the study briefly touched upon the role alternative placements play in the disciplinary process for special education students, a description of the characteristics of these settings and the extent of their use fell outside of the study’s scope. Moreover, the study focused on serious student misconduct (drugs, weapons, assault, rape, sexual assault, and robbery) and did not focus on less serious offenses.

Disciplined Students Were Primarily Placed in In-School Suspension Rooms and Out-of-School Suspensions at Home

Disciplined special education students were primarily placed in one of two short-term disciplinary settings: in-school suspension rooms or out-of school suspension at home, according to survey respondents in three selected states. The length of a student’s removal was a key consideration in placement decisions. Because most disciplined special education students were generally removed for short periods of time, these two short-term disciplinary settings were the most frequently used. Students removed for longer periods (exceeding 10 days) were more likely to be placed in settings with greater access to service providers, such as alternative schools or homebound placements. Other factors affecting placement decisions included the cumulative number of days a student had been removed, the cost and availability of placement options and the nature of the student offense. Our survey results indicated that the placements of disciplined special education students were similar to those of disciplined regular education students.

Of the 32 school officials who responded to our survey and could provide student removal rate data, 31 reported that either in-school suspension rooms or out-of-school suspensions at home were the most frequently used placements for disciplined special education students. While district special education administrators and school officials primarily used short- term placements, such as in-school suspension rooms and out-of-school suspensions at home, to discipline special education students, they also reported placing special education students in longer-term disciplinary placements such as alternative schools and homebound placements. According to survey respondents, about two-thirds of the districts and one-quarter of the schools used these types of placements; they were used much less frequently than short-term settings.

In addition to the length of the student’s removal, school and district administrators reported considering several other factors when making placement decisions, including the cumulative number of days the student had been removed during the school year, the cost and availability of placement options, and the student’s offense. First, because federal law provides that special education students may not be removed for more than 10 days in a school year without the provision of services, schools and districts considered the cumulative number of days a special education student had previously been removed when making placement decisions for special education students. If a special education student was about to exceed or had already exceeded the 10-day limit, schools and districts generally placed the student in settings with access to service providers, such as alternative schools or homebound settings with services.

Second, due to cost and administrative concerns, most schools and districts in the states we visited only placed disciplined students in those placements to which they had readily available access. Under special circumstances, such as unique student needs or court orders, schools would remove students to placements that they did not normally use such as residential schools that may be located outside of the school district. If a placement with greater access to service providers was not available or was too costly, some school and district officials reported that they reduced the length of the student’s removal or eliminated the removal all together. In addition, the schools that we visited in our study sometimes used the practice of “banking” removal days, or allowing them to be “saved” and served later, to make sure that the total number of days a student was removed did not exceed 10 for a given school year. According to national education organization officials, “banking” removal days is not an uncommon practice because it allows school officials to ensure that disciplined students do not reach the 10-day limit early in the school year.

Finally, students’ offenses and required disciplinary actions were also considerations in placing a disciplined student. The schools districts we visited operated under a student conduct code that required specific disciplinary action for various offenses. The student conduct code therefore often dictated placement decisions. For example, a weapons or drugs offense might require placement at an alternative school, whereas a lesser infraction, such as being disruptive, might require an in-school suspension.

Disciplinary placements of special education students were similar to those of other students, based on our survey results. In addition, schools and districts generally used the same criteria in determining where to place students. However, administrators reported considering cumulative days that a student had been removed when placing special education students but not when making placement decisions for regular education students.

Schools and School Districts Provided a Range of Services to Disciplined Special Education Students

In the 2001-2002 school year, schools and school district officials in the three states that we studied reported providing a range of services to disciplined special education students. However, how schools and school districts provided educational and other services varied significantly. School district officials reported that they generally did not provide any services to assist returning special education students in acclimating to their regular educational setting after a disciplinary placement, and the provision of such services is not required by law.

Schools and School Districts Provided Educational Services, but These Services Varied Significantly

The educational services provided to students in disciplinary settings varied considerably by the degree to which the service included active instruction. For example, in one school, educational services for a disciplined student consisted of an academic packet, which was generally the material the student would miss when he or she was away from the regular educational setting. When presented with a packet, it was up to the student to work through and complete the packet. In another district, educational services in disciplinary settings included active instruction, such as tutoring by special education instructional personnel. However, the amount of time spent giving the disciplined student this instruction varied considerably. For example, in one district, a special education student in a disciplinary setting received 6 hours of active instruction per day, while in other schools they received no instruction. Further, according to the district officials we surveyed, the qualifications of instructional staff varied widely across placements and disciplinary settings. For example, the survey respondents in our study reported that educators at alternative schools were more likely to be certified, while instructional staff in in-school suspension rooms and homebound placements ranged in qualifications from fully certified to uncertified.

Services Other Than Educational Services Were Sometimes Available, though Their Availability Varied by Placement

Special education students in disciplinary placements may have access to other services in addition to educational services, although the availability of these services varied. The type of service provided usually depended on the needs of the student as defined in the student’s IEP as well as the availability of services within the school district. In addition to educational services, other services could be made available during disciplinary placements to meet the requirements of the IEP, according to survey results. These services could include: counseling and other related services.

Counseling by a guidance counselor was also commonly made available to disciplined students. Related services such as speech pathology and occupational therapy were less available. The availability of services and providers was in large part determined by where a student was placed while being disciplined. For example, students placed in alternative schools generally had access to most services and providers, whereas disciplined students placed in out-of-school suspensions at home rarely had access to services other than educational services. See table 1 for services and providers by placement type.

School Districts Generally Did Not Provide Services to Assist Students Transferring from a Long-Term Disciplinary Placement

School districts generally did not provide reintegration services for disciplined special education students returning from long-term placements. Education’s regulations do not require the provision of reintegration services for students with disabilities, and only about one- third of school districts we surveyed indicated that they provided them. While such services are not required, national education organizations’ officials agreed that the provision of reintegration services helps students make a successful transition back to their regular educational setting.

When reintegration services were provided, they varied greatly. For example, in one school district, school officials allowed students to transition slowly from their long-term disciplinary setting, gradually increasing the amount of time per day that students spent in their regular educational settings. However, in some instances, reintegration services were limited. For example, in one district, officials said that reintegration services consisted of receiving a folder of information about the students experiences at the alternative school, and in other schools these services consisted of a meeting, prior to the student’s return to the regular educational setting, between the school administrators, the disciplined student, and his or her parents.

Education’s Guidance and Oversight of Disciplinary Placements Has Been Limited

Education provided guidance and oversight to states and school districts for disciplinary placements of special education students by providing information on federal requirements and reviewing state self-assessments, improvement plans, and data, and conducting on-site data collection visits in selected states. However, the guidance on certain aspects of disciplinary placements was limited. In addition, Education’s oversight system may not detect possible noncompliance. The system relies on the results of state monitoring efforts that are not always reliable and discipline data that contain some inaccuracies. Education’s next generation oversight system, known as the Continuous Improvement and Focused Monitoring System, has been recently approved by the department and will be implemented in calendar year 2003, according to Education officials. This new system was designed to focus the attention of the department’s monitoring efforts on the states that need the most support to improve their performance. In addition, Education plans to conduct site visits in selected states to validate data used by the system to make federal oversight decisions.

Education Provided General Guidance on Special Education Disciplinary Placements

Under its responsibilities for IDEA implementation, Education provided general guidance to state and local education officials on disciplinary placement issues. However, according to some state and local education officials, this guidance was not specific enough. For example, while the department provided assistance in the form of information and technical assistance concerning the general implementation the act’s disciplinary requirements, the assistance generally did not include enough details on disciplinary placement questions, such as how to determine whether the days of in-school suspension should be counted as days of removal under the 10-day rule. Further, national education organization officials also cited the limited federal guidance on in-school suspension.

According to some district officials, while Education’s regulations describe IDEA’s 10-day rule, the guidance is limited because the regulations do not provide illustrative examples concerning how the 10-day rule could be applied to a range of circumstances at the local level. Under the 10-day rule, schools can discipline special education students for up to 10 days in a school year without providing educational or other services specified in their IEPs. However, some school and district officials indicated that being provided with examples that illustrate how to determine whether the days of in-school suspension should be counted as days of removal under the 10-day rule would assist them in ensuring that disciplined special education students are not without their IEP services for more than 10 cumulative days in a school year.

Education officials suggested that state and local education officials who need clarification of the 10-day rule refer to the disciplinary section of the preamble to the regulations and the discussion of comments on the act’s disciplinary requirements. The information that Education identified concerning in-school suspension as it applies to the 10-day rule is not in the federal regulations. Rather, the discussion of in-schools suspension appears only in a 1999 Federal Register notice, a document that is less accessible to the public than departmental regulations. As a result, some school officials may have been unaware that the Federal Register notice accompanying the IDEA discipline regulations contained criteria to be used in determining whether days of in-school suspension should be counted as days of removal under the 10-day rule. In this notice, Education provided general criteria for determining whether a day in in- school suspension should be counted as a day of suspension, but it does not provide details and examples to assist schools and districts in applying the criteria. Our findings regarding the limited guidance available and accessible on in-school suspensions are consistent with the findings of the 2002 President’s Commission on Excellence in Special Education.

Education’s Oversight System May Not Have the Necessary Information to Determine if Disciplinary Requirements Were Met

Education’s oversight system may not detect possible noncompliance because it relies on state-submitted information that may not be reliable. Therefore, Education may be unable to identify the appropriate level of oversight for particular states. According to Education officials, Education’s next generation oversight system—known as the Continuous Improvement and Focused Monitoring System—was recently approved by the department and will be implemented during calendar year 2003. This new system was designed to focus the attention of the department’s monitoring efforts on the states that need the most support to improve their performance. In addition, Education plans to conduct site visits in selected states to validate data used by the system to make federal oversight decisions.

Under IDEA, states have oversight responsibility for monitoring the implementation of a broad set of requirements under the act, including disciplinary placements. States have responsibility for monitoring districts’ implementation of IDEA requirements and preparing reports for Education, documenting the results of their oversight efforts. States generally fulfill this responsibility by engaging in activities such as gathering discipline data and by requiring districts to complete reports documenting compliance with requirements.

Education has responsibility for overseeing state compliance with IDEA requirements. In 1998, Education implemented an oversight system known as the Continuous Improvement Monitoring Process (CIMP). The oversight system relies on the administrative review of information obtained primarily from two sources: (1) state monitoring efforts and (2) state discipline data. Education uses information obtained from these two sources to determine the appropriate amount of federal oversight that a state will receive, such as whether or not a site visit to the state will be conducted. If the information submitted indicates that the state is in compliance with IDEA requirements or has proposed strategies to come into compliance, Education officials continue to track IDEA implementation but generally do not visit the state. However, if the department’s administrative review determines that the state did not effectively identify areas of noncompliance and other areas needing improvement, Education officials will conduct one or more site visits to the state to assess the situation and assist the state in developing improvement strategies.

Under the CIMP oversight system, states are expected by Education to undertake a number of monitoring activities to demonstrate their compliance with IDEA requirements. It is the responsibility of each state to work with a diverse group of stakeholders, including state and local education officials, parents, and advocacy groups, to evaluate the state’s effectiveness in achieving compliance with IDEA. This generally involves conducting a self-assessment and developing an improvement plan to correct any deficiencies. According to Education officials, states were strongly encouraged to document state performance, as part of the self- assessment process, by submitting an analysis of their monitoring findings of the school districts. States were also encouraged to document corrective actions taken by districts to address the findings and any enforcement activities undertaken by the state to ensure correction. Education used this information to document state performance and to determine if states were meeting their general supervisory responsibilities.

According to Education, some state monitoring systems were not effective at identifying compliance issues with federal requirements, and the information that the states subsequently reported to Education may have contained inaccurate information. During the period July 1, 1999 through February 25, 2003, Education officials conducted federal IDEA monitoring site visits to 12 states and the District of Columbia. In 6 of these locations, Education officials noted that the state IDEA monitoring systems were not effective in identifying and correcting noncompliance with federal requirements. For example, in a site visit to one state, Education officials found that despite the fact that psychological services are supposed to be offered, five school districts that they visited were not providing them unless they were required to by a due process hearing. However, the state education officials had identified four of these five districts as compliant. Further, Education’s 2001 Twenty-third Annual Report to Congress on the Implementation of the Individuals with Disabilities Education Act noted that many states still do not have effective systems for identifying noncompliance, or, when they do identify noncompliance with federal requirements, they do not have effective follow-up or enforcement strategies to ensure that public agencies correct the noncompliance.

In addition to relying on state monitoring systems, Education also relies on state-collected discipline data as a source for its administrative review of states’ compliance with IDEA requirements. However, the discipline data used by the oversight system contain some inaccuracies, although according to Education officials, its accuracy is improving. For example, Education has taken steps to validate the accuracy of the data through the regular application of data checks by its contractor and by providing technical assistance to state special education data managers on the collection of discipline data of the semiannual meeting at the Education Information Advisory Committee of the Council of Chief State School Officers. Some reasons for inaccuracies in the data included: unclear definitions; inconsistent data collection, entry, and verification within and across school districts; and poor response rates from schools and districts. The 2002 President’s Commission on Excellence in Special Education also identified data quality issues, including inconsistent reporting and data formats. While Education officials acknowledged that the special education discipline data contain some inaccuracies, they indicated that states were taking measures to improve the accuracy of the data. In addition, Education officials reported that they expect the accuracy of the discipline data to improve as school officials become more familiar with the data collection process. At this point, these data are the only discipline data available, so Education still is relying on them, although the agency recognizes their limitations.

Education is planning to implement the next generation of its CIMP oversight system known as the Continuous Improvement and Focused Monitoring System (CIFMS), which was approved in April 2003. According to Education officials, the new system will implement an integrated, four- part accountability strategy, with an emphasis on targeting those states most at risk for being out of compliance. This strategy includes (1) verifying the effectiveness and accuracy of states’ monitoring, assessment, and data collection systems; (2) focusing more oversight and monitoring attention to states at high risk of compliance, financial, and/or management failure; (3) supporting states in assessing their performance and compliance and in planning, implementing, and evaluating improvement strategies; and (4) focusing Education’s intervention on states with low ranking performance on critical performance indicators. This focused approach is aligned with the recommendations of the President’s Commission on Excellence in Special Education and was designed to focus the department’s monitoring efforts on the states that need the most support to improve their performance. In addition, because Education’s monitoring relies so heavily on state-reported data regarding performance and compliance, Education has developed plans to ensure the effectiveness of states’ data collection systems. To this end, Education officials told us that Education staff would visit 20-30 states in the next year to meet with state officials to verify the effectiveness of their data collection and monitoring systems.

Conclusions

Each year, the federal government makes a considerable investment to ensure that a free appropriate public education is available for children with disabilities. In 1997, the Congress amended IDEA to allow the removal of special education students from their current educational settings for any violation of school rules, but imposed limitations on how long these students could be removed without educational services. District and school officials in our survey reported that they are providing a range of services in different settings to disciplined special education students. However, they reported that additional guidance, especially more specificity concerning whether the days of in-school suspension should be counted as days of removal under the 10-day rule, would be helpful. Education’s current guidance concerning how these provisions should be implemented is broad, thus leaving local school and school district officials flexibility in interpreting how these requirements should be implemented. Because state and local school district officials may not have the specific information that they need to comply with federal requirements, disciplined special education students may not receive timely protections and services.

Recommendation for Executive Action

We recommend that the Secretary of Education issue supplemental guidance to state and local education agencies on IDEA’s disciplinary provisions that includes examples to assist states and local education agencies in implementing the provisions in the law related to disciplinary placements. In particular, the guidance should include examples for applying IDEA’s 10-day rule, including illustrations on how to determine whether a day of in-school suspension should be counted as a day of removal.

Agency Comments and Our Evaluation

We provided a draft of this report to Education for review and comment. Education officials indicated that they provided sufficient guidance on IDEA’s disciplinary provisions and did not see the need for supplemental guidance. Education cited four existing documents that discuss IDEA discipline issues. In addition, Education officials provided new information in their comments on the draft that indicated that they plan to validate state discipline data as part of their newly approved monitoring system. Consequently, we modified the report to reflect Education’s validation plans. Education officials also provided technical comments that we incorporated into the report where appropriate. Education’s comments are reproduced in appendix II.

We continue to believe that additional guidance is needed; however, we modified the report to reflect that clarification of how to count in-school days under IDEA’s 10-day rule was the primary area in which guidance was needed. Education officials also noted that any guidance should be provided after IDEA has been reauthorized. We concur with Education’s proposal to issue any additional guidance after the reauthorization has been completed.

Education included in its comments new information concerning the data verification aspect of its IDEA monitoring systems and, as a result, we withdrew a recommendation on data validation. We reviewed the information provided—Office of Special Education Programs Memorandum 03-05, dated April, 8, 2003—as well as technical comments that described Education’s plans to implement a process to verify state monitoring, assessment, and data as part of its focused monitoring system. We acknowledge Education’s efforts in this regard and encourage the department to continue to periodically validate the information that is used by its IDEA monitoring systems.

As agreed with your office, unless you publicly announce the contents of this report earlier, we plan no further distribution of the report until 30 days from its issue date. At that time, we will send copies of this report to the Secretary of Education, relevant congressional committees, and other interested parties. We will also make copies available to others upon request. In addition, the report will be made available at no charge on GAO’s Web site at http://www.gao.gov. Please contact me on (202) 512-7215 or Harriet Ganson on (202) 512-7042 if you or your staff have any questions about this report. Other contacts and major contributors are listed in appendix III.

Appendix I: Objectives, Scope, and Methodology

The Ranking Minority Member of the Senate Committee on Health, Education, Labor and Pensions asked GAO to determine: (1) where special education students are placed when they are removed from their educational settings for disciplinary purposes; (2) to what extent local school districts in selected states continue educational services for special education students who are placed in disciplinary settings while they are disciplined and what types of services are provided; and (3) how Education provides support and oversight for disciplinary placements used for special education students. In our review of disciplinary placements, we focused on middle school and high school students and their placements, but did not include information about disciplinary placements for elementary school students. Elementary school information was excluded because National Center for Education Statistics data indicated that elementary schools experienced fewer disciplinary problems than middle schools or high schools. Our study collected information about disciplinary placements from the 2001-2002 school year, the most current full year data available.

To respond to this inquiry, we conducted an in-depth review of the use of disciplinary placements for special education students at middle and high schools in three states—Illinois, Maryland, and North Carolina. These states were selected because they represented different levels of disciplinary activity, such as the number and percent of special education students who were disciplined and the number of disciplined special education students who were removed from their educational settings on either a short-term (10 days or less) or long-term (more than 10 days) basis. In these states, we surveyed a nonprobability sample of 36 district special education administrators and 78 administrators from school districts of varying characteristics. In addition, we reviewed U.S. Department of Education documents to determine the federal role in providing oversight and guidance for disciplinary placements and examined Education databases for national data regarding the discipline of special education students. We also interviewed federal officials, national education organizations’ representatives, and special education experts concerning disciplinary placements for special education students.

State Selection

We selected three states in which to conduct our study of disciplinary placements based on several criteria. To ensure sufficiency of data to analyze, we identified 19 states that disciplined 1,000 or more special education students during the 1999-2000 school year. These 19 states were divided into three categories, (above average, below average, and average) depending upon the percent of special education students disciplined per year, with the national average being 1.12 percent. We then chose candidates from each category and spoke with state administrators to determine the extent to which these states collected discipline data. On the basis of these criteria, we selected Maryland (above average: 1.80 percent), Illinois (below average: 0.55 percent), and North Carolina (average: 0.89 percent) for analysis.

Site Visits

In each state, we visited two school districts of varying characteristics. The districts were selected for variance in the number of special education students served, their geographic location—urban, suburban, or rural—and when possible, their overall rate of free and reduced school lunches (with the objective of gathering information from schools and districts serving a range of family incomes). During these visits, we met with district administrators; high school, middle school, and alternative school principals; administrators; and teachers when they were available. We also toured disciplinary placements.

Additionally, we visited state Departments of Education and spoke with special education directors about their state’s policy and procedures for disciplinary placements.

Surveys

We distributed 2 survey questionnaires—one to selected school district special education directors and one to middle and high school administrators—in Illinois, Maryland, and North Carolina. These surveys focused on the use of disciplinary placements for special education students during school year 2000–2001. The school district survey was sent to 12 selected school district special education administrators in each state for a total of 36 surveys. The surveyed districts were selected using criteria similar to that used in determining the sites to be visited—variance in the number of special education students served, their geographic location—urban, suburban, or rural—and when possible, their overall rate of free and reduced school lunches. We received 30 responses to the survey (83 percent). A second survey obtained information concerning special education disciplinary placements from selected middle and high school administrators. Using similar selection criteria to the school district survey, we distributed surveys to 26 middle and high school administrators in each state for a total of 78 school surveys. We surveyed one middle school principal and one high school principal from schools located within the 12 districts selected for the district survey. We also selected an additional two principals from large, urban districts to address size and diversity issues. We received 49 responses to the survey (63 percent). This nonprobability sample review of schools and districts in three states does not allow us to draw conclusions about all schools and districts covered by the Individuals with Disabilities Education Act authorization.

Appendix II: Comments from the Department of Education

Appendix III: GAO Contacts and Staff Acknowledgments

GAO Contact

Staff Acknowledgments

Tamara Fucile and James Kim made significant contributions to this report, in all aspects of the work throughout the assignment. In addition, Katherine Bittinger contributed to the initial design of the assignment, Ronald La Due Lake assisted in the design of the school district and school surveys; Lise Levie assisted in the management of the school survey; George Quinn, Jr., conducted the data analysis for both surveys; Behn Miller provided legal support; and Corinna Nicolaou assisted in the message and report development.