Indian Education: Actions Needed to Ensure Students with Disabilities Receive Special Education Services
Released: 2020-06-05T00:00:00

Letter

Background BIE Schools and the Federal Government’s Trust Responsibility

BIE’s Indian education programs derive from the federal government’s trust responsibility to Indian tribes, a responsibility established in federal statutes, treaties, court decisions, and executive actions. In 2016, the Indian Trust Asset Reform Act included congressional findings stating “through treaties, statutes, and historical relations with Indian tribes, the United States has undertaken a unique trust responsibility to protect and support Indian tribes and Indians...” In addition, “the fiduciary responsibilities of the United States to Indians also are founded in part on specific commitments made in treaties and agreements securing peace, in exchange for which Indians surrendered claims to vast tracts of land…” It is the federal government’s policy to fulfill its trust relationship with and responsibility to the Indian people for the education of Indian children by working with tribes toward the goal of ensuring that Interior- funded schools are of the highest quality and provide for the basic elementary and secondary educational needs of Indian children, including meeting the unique educational and cultural needs of these children.

Students with Disabilities in the BIE School System

Similar to students in elementary and secondary schools nationwide, some students in BIE schools have documented disabilities that require special educational or supplemental support. More than 6,000 students with disabilities, representing about 15 percent of total enrollment, attend BIE schools. Specific learning disabilities, such as perceptual disabilities, dyslexia, or impairments from brain injury, formed the most prevalent disability category among BIE students with disabilities in school year 2017-2018 (see table 1), affecting more than half of the students with disabilities at BIE schools.

Individualized Education Program

An IEP is a written statement for each child with a disability designed to meet the child’s individual needs under IDEA. IDEA requires that every child who receives special education services have an IEP. Before an IEP is developed, a child with a disability must be identified, located, and evaluated through a process known as Child Find. Generally, an adult familiar with the student’s abilities makes an official referral for a special education services evaluation. With parental consent, the student is then evaluated using a variety of assessment tools and strategies designed to help determine the student’s unique needs. Once a child is evaluated and determined to be eligible for special education and related services under IDEA, an IEP is developed describing the school’s delivery of required services to the child. IDEA regulations require that the services specified in a child’s IEP be provided to the child as soon as possible following the development of the IEP. Moreover, IDEA requires that a student’s IEP include, among other things, a projected date for the beginning of services and the anticipated frequency, location, and duration of those services. However, IDEA does not specifically address the steps that schools must take in cases where services are not provided in accordance with the anticipated service duration and frequency in the student’s IEP, such as cases where services were not provided at all or the duration was less than the amount of time specified in a student’s IEP. Educators are required to track the child’s academic progress over the school year and then annually review and update the IEP as needed at least once a year. IDEA requires schools to reevaluate children with IEPs at least once every 3 years to determine whether their needs have changed and if they still qualify for special education and related services under IDEA (see fig. 1).

Under IDEA, Interior receives funding to assist in the education of children with disabilities in BIE schools. BIE is responsible for meeting all IDEA requirements for these children, including that an IEP is developed and implemented for each eligible student and that the requirements of any identified education and related services are defined in the IEP. BIE policy requires that IEPs identify services for eligible students under two main categories: education services and related services. Education services include math, reading, and written expression, among others, while related services include occupational therapy, physical therapy, and speech-language pathology, among others, according to BIE’s policy. BIE also requires that IEPs include the type of provider for these services, such as a special education teacher for an education service, or a physical therapist for a related service, as well as information about the duration and frequency of the services to be provided (see fig. 2).

BIE schools are required to develop and update students’ IEPs in the Native American Student Information System (NASIS), an online data management system the agency created in 2006 for all BIE schools to record and store a variety of student-related information, including special education data.

BIE requires that schools document the special education and related services that their teachers or contracted providers deliver to students with IEPs, and Interior regulations require that schools maintain these and all other special education records for at least 4 years.

BIE Offices Responsible for Overseeing and Supporting Special Education at Schools

Multiple offices under the BIE Director are responsible for overseeing and supporting schools’ special education programs to help ensure that they comply with IDEA and other federal requirements for special education (see fig. 3).

The School Operations Division was established under the bureau’s recent reorganization to provide direction and assistance to BIE schools in education technology; human resources; communications; educational facilities; safety and facilities; and acquisition and grants. The division is also responsible for providing oversight over BIE school spending, including spending on special education.

Sixteen agency field offices called Education Resource Centers are located across the BIE school system and are administered by three separate BIE divisions under the Chief Academic Officer: the Associate Deputy Director-Tribally Controlled Schools, the Associate Deputy Director-Bureau Operated Schools, and the Associate Deputy Director-Navajo Schools. The Centers are primarily responsible for providing oversight and technical assistance to schools in a variety of areas, including their academic programs, fiscal management, and compliance with IDEA. In particular, Interior regulations and BIE procedures require that BIE annually verify that all students with an IEP in the BIE system are provided with special education services in accordance with their IEPs.

BIE’s Division of Performance and Accountability (DPA) is primarily responsible for overseeing Education-funded programs at BIE schools, including IDEA and Title I, Part A of the Elementary and Secondary Education Act of 1965, as amended. DPA’s primary oversight responsibilities involve monitoring schools’ implementation of these federal education programs. DPA also provides schools and other BIE offices with technical assistance and training on IDEA requirements, among other program areas. Since 2018, DPA and other BIE divisions have been responsible for working together in monitoring schools the agency considers high risk in administering federal education programs. Specifically, in May 2018, BIE established a new policy and guidance for conducting annual targeted, risk-based monitoring of BIE school programs, which is separate from the requirements for the agency to verify the provision of special education and related services annually. According to this policy, BIE is required to select a sample of 15 schools for this monitoring based on a variety of special education and other risk factors, including special education enrollment and unobligated IDEA funds. BIE’s policy requires that staff from five of its divisions—DPA, School Operations, and the three school divisions responsible for directly supporting BIE schools—coordinate and conduct joint monitoring activities as teams, including a review of schools’ special education programs. These teams are required to issue in depth monitoring reports and technical assistance plans to schools within 30 days of an on-site monitoring visit.

Role of Education’s Office of Special Education Programs

Education’s Office of Special Education Programs (OSEP) awards funds to states and BIE, and provides assistance and oversight in their implementation of IDEA. BIE, as with states, is required to report certain compliance information to OSEP. OSEP, in turn, determines BIE’s performance and level of compliance with IDEA and provides assistance to BIE to improve in specific areas.

Over the past 8 years, OSEP has found significant problems with BIE’s implementation of IDEA, which in 2019 prompted OSEP to withhold a portion of BIE’s IDEA funds. OSEP issued a determination letter in July 2019 that stated BIE needed intervention in implementing the requirements of IDEA because of its long-standing noncompliance and repeated failure to follow through on OSEP’s required corrective actions, among other issues. BIE had been in “needs intervention” status for each of the last 8 years. As a result of BIE’s continued noncompliance, OSEP in July 2019 withheld 20 percent, or about $780,000, of BIE’s fiscal year 2019 IDEA Part B funds reserved for administrative costs, an action OSEP has taken very infrequently. OSEP provided BIE notice and an opportunity for a hearing, but BIE did not appeal the withheld funds.

OSEP’s activities in overseeing BIE’s implementation of IDEA included investigating special education services at one BIE school in 2018. As a result of the investigation, in early August 2018, OSEP sent a letter to the BIE Director about its findings, including that some students at one BIE- operated school had not received services required in their IEPs, including speech language therapy and physical therapy, for almost a year because service contracts with providers had expired. The letter notified BIE that failure to provide services in a student’s IEP violated the IDEA requirement that a free appropriate public education be made available to all eligible students with disabilities. OSEP’s investigation also determined that six other BIE-operated schools were under the same contracts and may not have delivered IEP-required services to students. OSEP’s August 2018 letter required BIE to take several corrective actions within 30 days, including determining whether other schools had IEP service disruptions. In addition, the letter required that BIE develop a plan by the end of October 2018 to prevent contractual problems that could result in a similar disruption of services in the future. As of February 2020, BIE had not notified OSEP that it had completed those corrective actions.

OSEP’s oversight of BIE also included visiting BIE schools and agency offices in spring 2019 to examine BIE’s accountability system for IDEA. OSEP presented its findings and corrective actions to BIE in a letter and monitoring report in October 2019. OSEP found that BIE did not have policies and procedures for implementation of IDEA Part B at its schools, and that school officials wanted guidance on IDEA requirements from BIE. OSEP also found evidence of a systemic problem with service providers. For example, officials that OSEP interviewed at one school OSEP visited said they had not had a physical therapist during the entire 2018-2019 school year and did not have a school counselor the previous year. Such staff were required in order to provide services in accordance with students’ IEPs. The corrective actions detailed by OSEP in its October 2019 letter to BIE were to be completed within 90 days, including that BIE develop a plan and timeline for adopting policies and procedures for implementing IDEA. The bureau, however, requested a 60-day extension, which OSEP granted, moving the required date of completion for BIE’s actions to early spring 2020.

Prior GAO Work on Indian Education

Our prior work on Indian education found numerous weaknesses in BIE’s management and oversight of BIE schools, including problems with monitoring school spending and conducting annual safety and health inspections of school facilities. As a result of these and other systemic problems with BIE’s administration of Indian education programs, we added Indian education to our High Risk List in February 2017. In our 2019 High Risk update, we found that BIE had made progress in addressing some of these key weaknesses in Indian education, such as demonstrating leadership commitment to change. We reported, however, that the agency needed to show progress in other key areas, such as increasing its capacity to support functions related to administering and overseeing BIE schools.

BIE Schools Did Not Provide or Did Not Account for Almost 40 Percent of Students’ Special Education Service Time, According to School Documentation

BIE schools did not provide an estimated 20 percent of special education service time to their students during a 4-month period between October 2017 and February 2018, and they did not provide documentation for another 18 percent of service time. Schools frequently did not include reasons for missing services in their service logs, and their practices for whether to make up these services varied. Further, some schools provided no documentation for one or more services, while many schools provided documentation that lacked key information. Difficulties in identifying special education and related service providers, especially in remote areas, limited some schools’ ability to provide services to students.

Schools Did Not Provide Students with an Estimated 20 Percent of Special Education Service Time and Did Not Account for Another 18 Percent

We estimate that BIE schools either did not provide or did not account for 38 percent of the time for the special education and related services required by students’ IEPs, according to our analysis of school documentation. Specifically, we found that schools provided an estimated 62 percent of the service time specified in their students’ IEPs (see fig. 4). Of the service time remaining, we found that schools did not provide an estimated 20 percent of service time to students, and they did not provide any documentation for an additional 18 percent of such service time. When schools did not provide documentation, we were unable to determine whether services were delivered to students. Our analysis was based on a review of service logs at 30 BIE schools during a 4-month period between October 2017 and February 2018 for a nationally representative sample of students with IEPs.

Of the students who clearly did not receive service time, according to school service logs, three students at one school received no service time at all during the period of our 4-month review. Officials at the school told us that the special education teacher responsible for providing these services did not fulfill her responsibility to provide services to these students and eventually left the school. They added that the school did not have other qualified staff to provide the services during the period of our review.

School Documentation Frequently Did Not Include Reasons for Missing Services, and Schools’ Practices for Whether to Make Up Services Varied

Our analysis of school service logs found that an estimated one-quarter of the services that were missed did not have a reason listed in the logs, and as a result, we could not determine why the service was not delivered. Of the remaining estimated three-quarters of services that were missed, the top three reasons for missed services were student absences, school-sponsored activities (such as field trips), and provider absences (see fig. 5). BIE requirements do not specify that school service logs must include reasons for missed services.

We also found that the schools in our sample did not follow consistent practices for whether to make up regularly scheduled services that are missed. Based on our outreach to officials at the schools in our sample, 23 of the 30 schools that responded varied in their practices for whether to make up services that were missed for reasons including school- sponsored activities or unplanned school closures, such as snow days (see fig. 6).

In addition to information about their practices for whether missed special education services are expected to be made up, school officials also provided us with written responses about other factors that may influence this decision. For example, an official at one school responded that while providers of related services are expected to make up missed services when providers are absent, education service providers are not. Alternatively, an official at another school responded that all of the school’s service providers are responsible for finding a way to provide the IEP-required services regardless of the reason for missed service.

Additionally, we found that for schools that expect providers to make up missed services, timeframes for doing so varied considerably, based on written responses we received from schools. Specifically, while some school providers typically make up services within a week of the missed service, others aimed to provide them within a month or longer. One school official responded that related services—such as occupational therapy, physical therapy, and speech and language—may not be made up until the following summer, which could potentially result in a delay of up to 9 months if services are missed at the beginning of the school year.

BIE does not have official requirements on whether and when schools should make up missed services, and BIE officials provided schools with inconsistent information on this issue. For example, information provided to us by BIE’s Division of Performance and Accountability (DPA) shows that officials advised schools on one occasion that making up missed services is required only when they occur because the provider is not available, but on another occasion advised schools that all missed services should be made up. Further, one official in another BIE office that oversees and supports tribally controlled schools advised schools that making up services is not expected when they are missed due to school-sponsored activities or testing. In contrast, another official with the same division advised schools that services should always be made up regardless of the reason they were missed.

While IDEA does not specifically address the steps that schools must take in cases where services are not provided in accordance with the service duration and frequency in the student’s IEP, Education officials said that IDEA does not preclude state educational agencies—including BIE—from establishing their own requirements in this area, as long as they are consistent with IDEA requirements. We found that at least four state educational agencies, including Maryland, New York, North Dakota, and the District of Columbia, have done so.

IDEA requires that schools provide special education and related services to eligible students as outlined in their IEPs. However, because BIE schools follow inconsistent practices for whether to make up services when missed, and BIE has not established consistent requirements in this area, there is a risk that some schools may not be providing services in accordance with students’ IEPs. As noted previously, we found that schools did not provide or did not document almost an estimated 40 percent of students’ service time, based on our review of service logs. Missed services may delay students’ progress and increase the risk that they are not receiving a free appropriate public education as required under IDEA.

Some Schools Provided No Documentation for One or More Services, While Many Schools Provided Documentation That Lacked Key Information

In our generalizable analysis of service logs, we found that for an estimated 18 percent of service time, schools were not able to show whether education and related services were provided to students with IEPs because school service logs were either missing or incomplete. No service logs were provided by schools for 12 of the 138 students in our sample, and incomplete logs were provided for another 51 of the students. By school, 6 of the 30 schools in our sample did not provide any logs for at least one student, and 18 of the remaining 24 schools were missing a portion of the logs. The lack of service logs prevented us from determining whether some students were provided their required IEP services.

In addition, we found that many schools’ service logs lacked key information. In particular, service logs frequently omitted or did not clearly indicate service duration and frequency. This information is important for determining whether a school has provided services in accordance with a student’s IEP. Key areas in which service logs varied included:

Service duration and frequency: IEPs are required by BIE to specify the weekly frequency and duration of the services throughout the year. However, the service logs we reviewed often did not include both types of information. About one-quarter of the service log entries did not indicate the number of minutes provided, according to our statistical analysis. We estimate that about one-fifth included total minutes, but did not clarify how many times the service was provided. Just over half of the service log entries included both the duration and frequency of each service.

Individual vs. combined service entries: Eleven of the 30 schools in our sample provided us with service logs that grouped multiple services together without indicating the specific amount of time or the number of sessions for each service per week. As a result, when these schools recorded that less time was provided, we were unable to identify which of the services were missed. For example, one student was to receive five 60-minute sessions each of reading, written expression, and math per week, according to the student’s IEP. The student’s service log recorded the total number of minutes provided in a day but did not specify which services were provided (e.g., 540 minutes were provided, of a total 900 minutes per week). Based on this information, we could infer from the shortage of total minutes provided that some services were missed, but we were unable to determine whether the student missed reading, written expression, math, or a combination of all three services.

School officials responsible for completing service log: Service logs were completed by different types of staff across schools, including paraprofessionals, service providers, or special education coordinators.

School practices in documenting special education services varied widely because BIE has not established a standardized process for doing so. BIE officials told us the agency is currently developing a system to standardize how schools document services using a new online module within the Native American Student Information System. Officials provided documentation showing that they were developing this system to allow schools to consistently document both education and related services. BIE’s system, once fully implemented, may allow the agency to monitor and verify service provision more effectively and improve the consistency of schools’ documentation of services. BIE plans to fully implement the system and provide schools with the requisite training to use it by late 2020, according to agency documentation.

Difficulties in Identifying Special Education Providers, Especially in Remote Areas, Limited Some Schools’ Ability to Provide Services to Students

Officials at 22 of the 30 schools in our sample provided us with information in addition to their service logs, and all 22 schools reported difficulties in recruiting, hiring, or retaining staff or contractors with the required qualifications to provide special education and related services, which some said limited their ability to provide students with high quality required services. In written responses and interviews we conducted, school officials cited school size and remote location as constraints to recruiting, hiring, or retaining qualified service providers. In particular, while schools often rely on contractors to provide related services—such as occupational and physical therapy—officials at 10 of the 30 schools in our sample reported that the availability of qualified contractors was limited.

Education services, which are typically provided by school special education staff, were required for nearly all students with IEPs in our sample. Some school officials said in interviews and written responses that in some cases students did not receive education services because their schools either did not have any or enough qualified staff to provide them. For example, according to a BIE official, one BIE school reassigned its only special education teacher to fill a vacant science teacher position and did not provide required services to 18 students during the 2018-19 school year. In another example, one school reported that it did not have qualified staff to provide services to two students with IEPs for 12 consecutive weeks during the 2017-2018 school year. Officials said the school was unable to find a substitute special education teacher, and as a result, each student missed about 5 hours of service time per week during this period. An official at another school said that after advertising for a special education teacher for three years, the position is still vacant.

These examples illustrate challenges with hiring and retaining special education staff that may exist more broadly across the country. For example, according to recent Education data, 43 states reported shortages in special education providers in the 2018-2019 school year. However, promising practices may be found within the BIE system as well as across the states that could provide BIE schools direction in addressing shortages of special education providers. For example, two BIE schools recruited and hired special education staff through international work exchange programs meant to facilitate the employment of qualified teachers from other countries. Some schools also reported using outreach to other local BIE or public schools to find and share contractors. Further, OSEP has developed resources for addressing special education teacher shortages that it has made available to states and school districts. In particular, in 2019 OSEP hosted a series of online symposia on general strategies and best practices for schools to attract and retain effective special education personnel. These sessions featured experts and practitioners who discussed strategies for attracting and retaining personnel. Such strategies and other relevant state and tribal resources for addressing special education teacher shortages could provide BIE with additional support to address its own challenges in this area.

BIE has not taken steps, however, to establish a mechanism, such as a community of practice, to identify and communicate promising practices for schools, especially those in remote locations, to address their special education staffing and contracting challenges. BIE’s advisory committee on special education stated in its 2018 annual report that BIE needed to better support the recruitment of special education and related service providers at BIE schools. Further, BIE’s 2018-2023 strategic plan has a goal of supporting schools by identifying and sharing best practices and collaborating with schools to recruit, hire, and retain highly effective staff. In addition, federal standards for internal control state that agencies should select an appropriate mechanism for communicating externally.

Without greater support from BIE, some schools will continue to struggle to find the special education staff and contractors they need, and students at these schools may not receive the special education services they need to thrive academically.

Limited Monitoring and Technical Assistance Hampered BIE’s Oversight and Support for Special Education at Schools

Limited monitoring and technical assistance have hampered BIE’s oversight and support for special education at BIE schools. BIE did not verify the provision of special education and related services at about 30 percent of its schools in school year 2018-2019 due to limited oversight by its largest division. Additionally, BIE has not provided high-risk schools with timely reports after monitoring visits so schools can address their noncompliance with IDEA requirements. Further, staff in BIE’s Education Resource Centers often lack expertise in special education, and school personnel did not always know which agency staff to contact for special education support.

BIE Did Not Verify the Provision of Services at About 30 Percent of Its Schools in School Year 2018-2019 Due to Limited Oversight by Its Largest Division

BIE did not verify the provision of special education and related services at about 30 percent of its schools in school year 2018-2019, according to available agency documentation. Interior regulations, however, require that BIE annually review all schools’ documentation to verify the provision of special education and related services for every eligible student, among other things. BIE’s guidance for conducting these reviews specifically directs reviewing personnel to verify that students with active IEPs are receiving timely services as indicated on their IEPs. However, the BIE division that oversees about half of all BIE schools, which is led by the Associate Deputy Director-Tribally Controlled Schools, established a policy for its staff to verify provision of services at only a third of its assigned schools each year. The two other divisions, which oversee BIE-operated and Navajo schools, respectively, reported that they conducted reviews at 100 percent of their schools in school year 2018-2019.

The Associate Deputy Director-Tribally Controlled Schools who authorized this policy, told us that she believed the policy complied with Interior regulations. However, Interior’s Office of the Solicitor told us that this policy does not comply with Interior’s regulations. BIE officials said the Office of the Associate Deputy Director-Tribally Controlled Schools established this policy to reduce the number of schools the division annually verifies because of the division’s limited staff capacity. Six of 13 staff positions in this division with roles in overseeing or supporting special education were vacant as of February 2020, according to BIE documentation and a senior official. Although BIE developed a strategic workforce plan in 2019 with a goal of addressing staffing shortages across the bureau, the plan does not include information on a strategy or timeframe to address vacancies in positions with responsibilities to oversee and support special education at its schools.

BIE’s verification of special education and related services at schools has identified noncompliance with federal requirements. For example, according to BIE, a recent verification visit at one school identified numerous irregularities in its special education documentation, which prompted the school’s superintendent to request that BIE conduct a formal investigation. BIE investigators reported that school staff had falsified service records showing that services were provided when a teacher was not present, and that services were provided in multiple and inappropriate settings (e.g., math services recorded at the same time and date during reading, physical education, and science periods), among other things. As a result, BIE required several corrective actions from the school. As this example illustrates, the verification process provides BIE with an important oversight mechanism. This mechanism, however, is not being fully utilized by BIE’s largest school division. Without BIE annually reviewing documentation to verify the provision of special education for every student at all schools, the agency cannot ensure that students are receiving the services required by their IEPs.

BIE Has Not Provided High-Risk Schools with Timely Reports to Address Their Noncompliance with IDEA

BIE monitored 14 schools for high-risk monitoring in school year 2018- 2019, but did not provide the schools with timely monitoring reports and technical assistance plans for their compliance with IDEA and other federal education program requirements. In addition to its annual process of verifying that students with IEPs are receiving required special education and related services, BIE also conducts targeted oversight of schools it deems high risk. BIE’s high-risk monitoring policy, established in May 2018, requires that it select a sample of schools based on risk indicators related to IDEA and other federal education programs, and provide schools with in-depth monitoring of their special education and other education programs. Nine of the 15 schools selected for BIE’s 2018-2019 high-risk monitoring were selected because BIE considered them to be at a higher risk in administering special education. The factors that BIE considered included a large enrollment of students with IEPs and a significant amount of unobligated IDEA funds, among other factors. One school, for example, had not obligated about 50 percent of its IDEA funds within the timeframe required by IDEA.

BIE’s monitoring policy requires that it provide both monitoring reports and technical assistance plans to schools within 30 days of a visit. However, BIE sent schools visited in the 2018-2019 school year their monitoring reports in late August 2019—well after its required 30-day timeframe and several weeks after we requested the reports as part of this review. For example, BIE sent two school reports more than 8 months after its monitoring visits, and another two school reports more than 6 months after visits (see fig. 7).

Further, the reports sent to schools were not accompanied by technical assistance plans, as required by BIE policy, which are required to outline how BIE will assist schools in addressing findings of noncompliance. BIE officials said that a timeframe for when the plans would be developed and issued to schools had not been established.

BIE officials told us the late monitoring reports and the lack of technical assistance plans for schools resulted from BIE not fully implementing its 2018 high-risk monitoring policy. Officials said the monitoring policy requires monitoring teams to be comprised of staff from five BIE divisions: DPA, School Operations, and the three divisions responsible for directly supporting BIE schools. These staff work together to monitor special education and other school programs and develop reports and technical assistance plans for schools. However, BIE officials said that four of these divisions did not contribute staff to lead the monitoring teams, leaving the task of developing monitoring reports to a single division—DPA. DPA officials told us that developing such plans requires the knowledge, expertise, and coordination of staff across all five BIE divisions. They said that without participation from the other divisions, it is unlikely the plans will be developed and sent to schools because DPA itself does not have the staff capacity to do so. BIE officials told us they were aware of problems with coordination on high-risk monitoring across the five divisions and were considering how to make improvements, but did not provide a timeframe for doing so.

BIE’s monitoring reports and technical assistance plans are intended to provide high-risk schools with important information about their compliance with IDEA and other federal education funding programs, according to agency documentation. Each of BIE’s monitoring reports for the 14 schools in 2018-2019 included multiple findings of school noncompliance with special education requirements under IDEA or Interior regulations. Specifically, monitoring reports for several schools included findings related to their provision of special education services. For example, one report found that a school maintained no service logs and was not able to demonstrate it had provided any services to students. Without timely monitoring reports, schools lack vital information to address areas of noncompliance, including ensuring that staff and contractors provide and document special education services as required. Further, without the technical assistance plans that BIE policy states are to accompany monitoring reports, schools may not know what BIE resources are available to them for addressing specific special education compliance issues.

Staff in BIE’s Education Resource Centers Often Lack Expertise to Oversee and Support Schools’ Special Education Programs

Staff in BIE’s Education Resource Centers often do not have sufficient expertise on special education to provide appropriate oversight and technical assistance to schools, according to BIE officials. Staff in Education Resource Centers have special education-related responsibilities that include annually verifying that schools are providing special education services and assisting schools when compliance issues with federal special education requirements are identified or when schools request help. Several BIE officials, however, told us these staff often do not have the requisite knowledge about special education to effectively carry out these responsibilities. For example, two senior BIE officials said these staff do not consistently have the expertise required to review documentation on service provision. A staff member at one Education Resource Center said she and her colleagues often do not know what questions to ask school officials during site visits to verify their provision of special education services. Additionally, several officials told us that these staff often do not have the expertise to provide technical assistance to schools on special education. One official said these staff often provide incorrect information to schools because of their lack of expertise. Officials from two schools also told us that some Education Resource Center staff with special education responsibilities do not have sufficient expertise to oversee and assist them with their special education programs. Several BIE officials said Education Resource Center staff need additional training in special education to more effectively carry out their responsibilities.

Federal standards for internal control state that agencies should develop staff competencies—including knowledge, skills, and abilities—to achieve agency objectives. However, BIE has not ensured that Education Resource Center staff have the requisite competencies to oversee and support schools’ special education programs because it has not established special education training requirements. Without establishing such requirements and ensuring they are met, staff may not be effective in overseeing and assisting schools with their special education programs, including ensuring that students with IEPs receive required services.

School Personnel Did Not Always Know Which Agency Staff to Contact for Support with Their Special Education Programs

School officials said they did not always know which BIE staff to contact for support with their special education programs. Staff in BIE’s Education Resource Centers are responsible for regular outreach to schools about these programs, according to two senior BIE officials. However, officials we interviewed from some schools expressed confusion about the roles and responsibilities of various BIE offices and staff responsible for special education or said there has been a lack of outreach from Education Resource Center staff. For example, the special education coordinator at one tribally controlled school said she had received no information about which Education Resource Center was responsible for supporting her school. Several BIE officials acknowledged that schools do not always know which Education Resource Centers are responsible for supporting them. One senior BIE official also said that some schools are not aware that they can reach out to BIE for assistance with their special education programs.

BIE’s 2015 Communications Plan prioritizes regular communication with schools to provide key information and important developments affecting their schools. However, BIE officials said Education Resource Center staff do not consistently reach out to inform schools about how they can support schools’ special education programs. Additionally, as part of its recent reorganization, BIE shifted the roles and responsibilities of many offices and staff, including those responsible for supporting special education at schools. Without BIE taking steps to ensure its Education Resource Center staff communicate with all schools regarding their roles and responsibilities on special education, these staff may not consistently do so. As a result, schools may not know whom to contact for answers to questions, which could hinder their ability to provide effective special education services to students.

Conclusions

The purpose of IDEA is to fulfill the promise that all children with disabilities have available to them special education and related services designed to meet their unique educational needs. In exchange for the funds it receives from Education to implement IDEA, BIE must ensure that such an education is available to all of its students with disabilities. The potential for students with disabilities at BIE schools to advance academically depends, in part, on the ability of BIE to oversee and support schools in providing these students with the special education and related services required by their IEPs under IDEA. It is unclear, however, whether all BIE schools are meeting these students’ needs and ensuring that required services are consistently delivered because schools follow different practices for determining whether to make up services for students when they are missed. Further, the challenges that schools face in obtaining qualified special education staff and specialists to provide services—which may also exist for public schools nationwide— also present BIE with an important opportunity to partner with knowledgeable stakeholders and provide direction in this area. BIE also needs to address persistent administrative capacity issues in special education—such as vacancies and a need for training in key agency offices. In addition, BIE should ensure that relevant offices are reaching out to schools to inform them of their roles in overseeing and supporting schools’ special education programs. Finally, BIE must take steps to make sure its offices annually review school documentation to verify that students are receiving special education and related services and provide high-risk schools selected for targeted monitoring with timely reports and technical assistance plans.

In addition to IDEA’s requirement that special education services be provided to all eligible students with disabilities, BIE also has a responsibility to work towards the goal of ensuring that BIE schools are of the highest quality and provide for their students’ unique educational needs. Without taking steps to address weaknesses in key areas of special education, BIE cannot ensure that the schools it funds are meeting their responsibilities under IDEA or addressing the unique needs of more than 6,000 BIE students with disabilities.

Recommendations for Executive Action

We are making the following seven recommendations to BIE: The Director of BIE should establish consistent requirements for schools on making up missed special education and related services and monitor schools to ensure that they follow these requirements. (Recommendation 1)

The Director of BIE should work with knowledgeable stakeholders in Indian education to establish a community of practice or other formal mechanism to identify and disseminate promising practices for schools— especially those in remote locations—on recruiting, hiring, and retaining special education teachers and contracting with providers. The Director of BIE could consider conferring with BIE’s special education advisory committee, OSEP, and relevant tribal and state education officials in addressing this recommendation. (Recommendation 2)

The Director of BIE should rescind the policy of its division overseeing tribally controlled schools that does not meet Interior’s requirement to annually review all schools’ documentation to verify the provision of services for every special education student, and ensure that all divisions comply with this requirement. (Recommendation 3)

The Director of BIE should update the agency’s workforce plan to include a strategy and timeframe for filling vacant staff positions responsible for overseeing and supporting schools’ special education programs. (Recommendation 4)

The Director of BIE should fully implement the agency’s high-risk monitoring policy for IDEA and other federal education programs, including requirements for agency-wide coordination, and ensure that schools selected for such monitoring receive reports and technical assistance plans within 30 days of agency on-site visits, as required by BIE policy. (Recommendation 5)

The Director of BIE should establish special education training requirements for staff in the agency’s Education Resource Centers who are responsible for supporting and overseeing schools’ special education programs, and ensure that staff complete those training requirements. (Recommendation 6)

The Director of BIE should take steps to ensure that all of the agency’s Education Resource Centers conduct outreach with schools to inform them of their new roles in overseeing and supporting schools’ special education programs under BIE’s reorganization. (Recommendation 7)

Agency Comments

We provided a draft of this report to the Departments of the Interior (Interior) and Education (Education) for review and comment. Interior provided formal comments, which are reproduced in appendix II, agreeing with all seven recommendations and describing actions BIE plans to take to address them. Education provided technical comments, which we incorporated as appropriate.

As agreed with your office, unless you publicly announce the contents of this report earlier, we plan no further distribution until 30 days from the report date. At that time, we will send copies to the Secretaries of the Interior and Education and interested congressional committees. The report will also be available at no charge on the GAO website at http://www.gao.gov.

If you or your staff have any questions about this report, please contact me at (617) 788-0534 or emreyarrasm@gao.gov. Contact points for our Offices of Congressional Relations and Public Affairs may be found on the last page of this report. GAO staff who made key contributions to this report are listed in appendix III.

Appendix I: Objectives, Scope, and Methodology

Our report examines (1) the extent to which eligible Bureau of Indian Education (BIE) students with disabilities are provided the special education and related services required by their individualized education programs (IEP); and (2) the extent to which BIE oversees and supports the provision of these services at its schools.

Analysis of Special Education and Related Service Provision at BIE Schools Based on Generalizable Sample

Sample Design

To obtain a generalizable sample of students, we defined our target population as all students at BIE schools with an active IEP covering a full 5-month period between September 2017 and February 2018 and obtained an electronic listing of IEPs for the 2017-2018 school year—the most recent complete school year at the time of our analysis—extracted from the Native American Student Information System (NASIS). We used these data as a basis to define a sample frame and identified 2,904 unique students with an active IEP for the full period from 169 BIE schools. We assessed the reliability of these data by interviewing knowledgeable agency officials and reviewing technical documentation describing the methodology, assumptions, and inputs used to produce the IEP-related data we received from BIE, upon which we created our generalizable sample. We determined these data to be sufficiently reliable for the purposes of our report.

We selected a random two-stage cluster sample of 30 BIE schools and 150 students (about 5 per school) who had at least one active IEP covering the full period from the sample frame of 169 schools and 2,904 students. We chose to use a two-stage sampling approach to control (limit) the number of schools that we would need to coordinate with to collect the school-level data required. Because the number of unique in- scope students ranged between 2 and 88 per school, we chose to select schools with probability proportional to size. We computed the target sample sizes of 30 schools and 150 students (about 5 per school) using estimated standard errors of student age that accounted for the additional variance resulting from the complex sampling approach (two-stage cluster sample) for various sample sizes. We then compared the change in standard errors for various sample sizes of schools and students to those from a simple random sample of size 150. Based on these results, we observed that the decrease in standard errors began to level out at a sample size of 30 schools (n=30) and that selecting more than 5 students (m=5) per school would not significantly decrease the standard errors. To estimate the likely margin of error we expected to achieve from this sample, we conducted a simulation of 10,000 samples of 30 schools and 150 students and examined the distribution of outcomes from these results for 3 proportion estimates. The proportion estimates were designed to provide a range of variance outcomes. Based on this simulation of possible results, we expected this sample design to generate percentage estimates to the sample frame (full population) of students with an overall precision of about plus or minus 12 percentage points or fewer.

During our review we learned that one school selected in our sample was under a BIE internal investigation into irregularities in the school’s special education documentation. As a result, we removed the five students at this school from the sample. We added an additional randomly selected school as a replacement. As a result, we completed our analysis for 30 of the 31 schools that we sampled. Additionally, we found that a number of students selected within schools were out of the scope of our defined target population, such as when a student transferred to another school during our review period. When possible, we selected additional cases to account for the out-of-scope students. The final sample included 138 students at 30 schools. Based on the final sample of students, we completed our analysis for 96.5 percent of the students that we sampled that were within the scope of our defined target population.

We defined the primary unit of analysis as the student and generated estimates at the student level summarized across 17 of the 18 weeks in the time period of our analysis (between October 2, 2017, and February 2, 2018). We chose not to include data collected for the school week from December 25, 2017, through December 29, 2017 because most schools either did not provide services during this week or were closed.

We collected and analyzed the data for students’ scheduled services on a weekly basis. The data collection at this level resulted in multiple, repeated observations for each student. For the purposes of generating weighted, generalizable estimates, these data were summarized at the student level for each service type. The sampling weights were computed at the student level so that estimates from this sample will be made to the population of students. The student weight, which is the inverse of the probability of selection, was computed by combining a stage 1 (school) weight and stage 2 (student within selected schools) weight that each accounted for the probability of selection at each stage. The final student weights varied slightly from school to school based on the number of students selected within each school. The final student weights ranged from 16.13 to 24.20, and most were 19.36.

Document Collection

We conducted a test run of our document collection and analysis methodology at one BIE-funded school to determine the feasibility of collecting and analyzing school service logs in electronic form. Based on the successful results of the test run, we concluded that this methodology would allow for the collection and analysis of service logs from our sample of schools. We then requested electronic copies of IEPs and any applicable IEP amendments from BIE for the students in our sample. We followed up with BIE on any issues of unclear or missing IEP documentation. After compiling IEPs for the students in our sample, we requested service logs from our sample schools and requested confirmation of key information in students’ IEPs (e.g., the type, duration, and frequency of services for our review period).

School File Review and Coding

To generate a data set based on schools’ service logs, we coded, by week, information contained in all service logs using a coding scheme that specified type of service (i.e., education vs. related), frequency of services received, duration of services received, and reasons for missed services. To determine the baseline of minutes and frequency for each service, we calculated the duration and frequency of services required in student IEPs and removed service duration and frequency on days that schools were not in session according to school calendars.

In cases in which schools did not provide us with service logs for part or all of our review period, we were not able to determine whether the services were received. In such cases, we recorded these minutes in a separate category, labeled “service time not accounted for.” In a small number of instances, schools recorded service log entries, but unclear notation prevented us from being able to determine whether the service was provided. This accounted for less than half of a percent of service time.

Because the information contained in school service logs is self-reported by school personnel or service contractors, we were not able to assess the overall accuracy of this information, such as whether services were actually provided—a limitation that generally applies to research relying on self-reported information. We conducted extensive follow-up with schools, however, to ensure the most complete data collection possible and contacted them when further information or clarification was needed to understand service log entries. Additionally, we obtained student attendance data from BIE to compare with entries in service logs from four schools. As the result of this comparison, we removed one student from our sample whose attendance data showed significantly higher absences than were reflected in school service logs.

In many cases, we received service logs that did not convey complete information about some aspects of service provision. For example, some logs used non-numerical notation to show that services were provided, such as checkmarks. In these cases, we assumed that a checkmark indicated that one full service was provided and recorded the number of minutes in a typical service. Additionally, some service logs combined multiple services (e.g., 60 minutes of math, 30 minutes of reading, and 30 minutes of writing) into one log and recorded the total number of minutes that services were provided within a week. As we could not determine which services were expected on which days within a week, we adjusted minutes and frequency for combined services when schools were not in session by prorating the weekly totals accordingly.

To collect information on reasons for missed services, we categorized recorded reasons into the following groups: (1) student absence; (2) student disciplinary action; (3) provider absence; (4) provider administrative duties; (5) unplanned school closure; (6) school-sponsored activities; (7) testing; and (8) reason not provided. We recorded missing service logs as a separate category (“service time not accounted for”) and did not include them in our analysis of reasons for missed services.

Generalizable Results Based on the Sample

Estimates from this sample are generalizable to the estimated in-scope population of about 2,600 (+/- 130) students with at least one active IEP covering the period from September 1, 2017, through February 1, 2018. Because we followed a probability procedure based on random selections, our sample is only one of a large number of samples that we might have drawn. Since each sample could have provided different estimates, we express our confidence in the precision of our particular sample’s results as a 95 percent confidence interval. This is the interval that would contain the actual population value for 95 percent of the samples we could have drawn. All estimates in this report have a confidence interval with a margin of error of plus or minus 12 percentage points or fewer, unless otherwise noted.

Non-Generalizable Information Collected from Sample Schools

In addition to the generalizable data we collected on schools’ special education service provision, we asked school officials to respond to an optional set of questions on the challenges schools face, if any, in providing services. Eighteen of the 30 schools in our sample provided responses. Of the schools who did not respond, we obtained information on challenges with service provision from four additional schools during our site visits, which are described below. Together, we obtained perspectives about the challenges schools face in special education service provision from a total of 22 of the schools in our sample.

We also requested information from schools about the circumstances under which providers are expected to make up missed special education services, and the timeframe in which these make-up services are expected. Twenty-three of the 30 schools in our sample provided a response.

Site Visits

To help inform both of our research objectives, gather additional information about schools’ special education programs, and explore issues related to their provision of special education and related services, we conducted site visits to seven schools in our sample located in New Mexico (4 sites) and Arizona (3 sites), selected for their large numbers of BIE-funded schools. Our criteria for selecting schools included special education student enrollment size, whether a school was operated by BIE or a tribe, and tribal affiliation.

At each site, we gathered information from participants—including school administrators and teachers—using semi-structured interview questions.

We collected information on school staff’s roles and responsibilities in administering and overseeing special education; policies, practices, and any challenges to providing and documenting special education and related services; and perspectives on guidance and support, if any, from relevant BIE offices.

Our site visits also included meetings with BIE officials in Albuquerque, New Mexico, and Window Rock, Arizona. Our interviews with officials focused on their roles and responsibilities in overseeing and supporting schools’ special education programs; staff capacity; intra-agency coordination on special education; policies and procedures related to special education monitoring; and their views on factors, if any, that may affect schools’ ability to provide special education and related services to students with IEPs.

Interviews and Reviews of Relevant Documents

To inform both research objectives, we also interviewed officials in several BIE offices with responsibilities for overseeing and supporting schools’ special education programs, including: the Office of the Director; the Division of Performance and Accountability; the Office of the Associate Deputy Director-Tribally Controlled Schools; the Office of the Associate Deputy Director-Bureau Operated Schools; and the Office of the Associate Deputy Director-Navajo Schools. Our interviews with agency officials focused on their roles and responsibilities in overseeing and supporting schools’ special education programs; staff capacity; intra- agency coordination on special education; policies and procedures related to special education monitoring; and their views on factors, if any, that may affect schools’ ability to provide special education and related services to students with IEPs. We compared BIE’s oversight and technical assistance activities against requirements under IDEA and Department of the Interior (Interior) regulations, BIE policies and procedures, and federal standards for internal control to evaluate the sufficiency of their efforts in monitoring and supporting BIE schools’ special education programs.

We also conferred with Interior’s Office of the Solicitor regarding their position on whether one BIE division’s policy for reviewing special education documentation at schools conformed to Interior’s regulations.

Additionally, we interviewed current and former members of BIE’s advisory committee on special education to obtain their views on the extent to which BIE schools provide required services to students with IEPs and challenges, if any, that schools may face in delivering services.

We also interviewed national groups with expertise on Indian education and BIE schools—including the National Congress of American Indians, the National Indian Education Association, and the Tribal Education Departments National Assembly—to obtain their views on special education and related services at BIE schools.

Our review of relevant documentation included BIE’s monitoring and technical assistance policies and procedures as well as relevant federal laws and regulations, including requirements under IDEA Part B. This included BIE’s May 2018 policy and procedures on conducting high-risk monitoring of the implementation of federal education programs at BIE schools. In addition, we reviewed the Department of Education’s determination letters and October 2019 monitoring report to BIE assessing the agency’s compliance with IDEA requirements.

We conducted this performance audit from July 2018 to May 2020 in accordance with generally accepted government auditing standards. Those standards require that we plan and perform the audit to obtain sufficient, appropriate evidence to provide a reasonable basis for our findings and conclusions based on our audit objectives. We believe that the evidence obtained provides a reasonable basis for our findings and conclusions based on our audit objectives.

Appendix II: Comments from the Department of the Interior

Appendix III: GAO Contact and Staff Acknowledgments

GAO Contact Staff Acknowledgments

Melissa Emrey-Arras, (617) 788-0534 or emreyarrasm@gao.gov In addition to the contact named above, Elizabeth Sirois (Assistant Director), Edward Bodine (Analyst-in-Charge), Liam O’Laughlin, and Angeline Bickner made key contributions to this report. James Ashley, Susan Aschoff, Serena Lo, John Yee, James Rebbe, Sam Portnow, Aaron Karty, James Bennett, Avani Locke, and Olivia Lopez also contributed to this report.

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