OSEP’s Report on the Monitoring of Massachusetts
Under the IDEA, States have a general supervision responsibility for ensuring that all public agencies comply with the requirements of Part B of the IDEA. (See 34 CFR §300.600). As early as 1975, Congress recognized the need for a central point of responsibility and accountability. The Senate Report on PL 94-142 stated that the general supervision provision would "... assure that in the implementation of all provisions of this Act and in carrying out the right to education for handicapped children, the State educational agency shall be the responsible agency." The importance of this provision continues to be recognized by Congress and was strengthened by the 1997 Amendments to the IDEA. The language in the IDEA, as well as relevant court decisions, plainly demonstrates that the State's responsibility goes beyond the mere writing of regulations and procedures. The court held in Cordero v. Pennsylvania Department of Elementary and Secondary Education, 795 F. Supp. 1352 (M.D. PA 1992): "The State's role amounts to more than creating and publishing some procedures and then waiting for the phone to ring. The IDEA imposes on the State an overarching responsibility to ensure that the rights created by the statute are protected regardless of the actions of local school districts."
The IDEA contains several mechanisms for State education agencies to use in fulfilling their general supervisory responsibilities. A strong State monitoring process to ensure effective implementation of the IDEA is crucial to improving educational results for children with disabilities. A basic component of State eligibility has long been that the State education agency exercises general supervisory responsibility over all educational programs for children with disabilities in the State, including ensuring that those programs meet the requirements of IDEA. This responsibility includes not just monitoring, and enforcement when noncompliance is not corrected, but also effective technical assistance that focuses on best practice designed to improve the substantive content and results of special education. A key priority of OSEP's monitoring is the State's compliance regarding its supervisory role in the implementation of IDEA.
Validation Planning and Data Collection
OSEP found in its previous monitoring of ESE in October 1994, that ESE did not exercise its general supervisory responsibility in a manner to ensure children with disabilities were provided programs which met the requirements of Part B. ESE did not: 1) implement effective monitoring procedures with sufficient frequency to ensure compliance; 2) correct deficiencies found in public agencies through an effective corrective action process; 3) implement procedures that ensured complaints and due process hearings were resolved in a timely manner; and 4) adequately inform parents and other interested individuals about complaint procedures. During OSEP's follow-up monitoring review in May 1997, OSEP found improvement in the areas cited out of compliance in 1994. However, OSEP also found that ESE needed to improve its monitoring process through the consistent application of its monitoring procedures and to shift its focus from process requirements to improved results for children with disabilities.
To obtain data on ESE's oversight of educational programs for children with disabilities across Massachusetts, OSEP used information from the review of citizen complaints, ESE's self-assessment, information from public input meetings, and information provided by the Steering Committee. ESE's self-assessment has a statement that the Program Review (monitoring) system is "seen by the public schools and parents as comprehensive and accessible. " Increased appropriations by the State have made it possible to move to a 5-year monitoring cycle. In addition, ESE reported that an increased focus on accountability has resulted in the development of a unit for Accountability and Technical Assistance which links technical assistance with the findings from program reviews. ESE also reported that with the exception of certain individual circumstances, corrective actions, complaint investigations, and due process hearings are "functioning effectively."
Information obtained from the public input process tended to provide a very different perspective. In a survey of parents conducted by the Federation for Special Needs, 34% of the parents who filed a complaint reported that they had not received a decision within the 60 day timeline and 28% reported that ESE had not followed up to ensure that corrective actions were implemented. One of the questions asked during the public input meetings, November 30- December 2, 1998, was "Are there any administrative barriers to providing appropriate services to students with disabilities?" Responses to this question indicated that problems were perceived with monitoring of school districts, enforcement of corrective actions, due process hearing decision timelines, State funding for special education, and a State presence and accountability at the local school level. An overriding theme was inconsistencies in services between school districts within Massachusetts. Many speakers attributed this problem to ESE's lack of identification and enforcement of special education requirements.
To investigate the issues identified through the Validation Planning process, OSEP collected data from local school districts across Massachusetts, interviewed parent groups, and obtained information at the State educational agency relative to the ESE's responsibility to ensure that all education programs for children with disabilities meet Part B requirements and State education standards. Analysis of the data collected resulted in identification of the following areas requiring improvement.
1. Effective methods for identifying and correcting deficiencies in programs providing services to children with disabilities
As required at 20 U.S.C. §1412 (a)(11), ESE is responsible for ensuring the requirements of Part B are met, that all programs for children with disabilities in the State are under ESE's general supervisory authority, and that these programs meet the educational standards of ESE. One method of ensuring that ESE meets this requirement is through its State monitoring system of local educational agencies.
In spite of these improvements, OSEP finds that ESE has not yet implemented a monitoring system that is effective in identifying and correcting Part B requirements.
One of the repeated comments OSEP received in public input meetings was the inconsistency in programs between districts and, in some instances, a lack of compliance with special education requirements. Commentors attributed this to a lack of ESE oversight and enforcement.
In addition, OSEP made substantial findings regarding Part B requirements for educating children with disabilities in the least restrictive environment in both its 1991 and 1995 monitoring reports. As noted above in Part B: Free Appropriate Public Education in the Least Restrictive Environment on page 28 of this Report, OSEP found in five out of ten agencies it visited, that these agencies were not educating children with disabilities with nondisabled children to the maximum extent appropriate, especially for children placed in separate educational environments. A continuing deficiency identified by ESE staff through their monitoring process was compliance with the transition requirements. As noted above in Part B: Secondary Transition on page 35 of this Report, OSEP found violations in transition planning across all ten districts visited. These same problems were identified by OSEP as violations of Part B requirements during OSEP's 1995 monitoring visit.
OSEP acknowledges that ESE has reorganized its corrective action procedures in order to ensure more effective correction and accountability. These procedures result in more timely approval of corrective action plans when violations in districts are discovered and the review of corrective actions remaining with ESE's Program Quality Assurance Services, which conducts the on-site monitoring, rather than through a different cluster within ESE. However, OSEP finds that ESE has not yet implemented a system that is effective in correcting violations of Part B requirements when they have been identified.
OSEP also finds that ESE's monitoring procedures are not effective in identifying all Part B requirements. As noted above in Part B: Free Appropriate Public Education in the Least Restrictive Environment on page 24 of this Report, OSEP found that in six of the public agencies visited that were monitored over the past 3 years ESE failed to identify the lack of provision of psychological counseling and ESY services to children who may need these services to benefit from special education.
The IDEA amendments were enacted on July 1, 1997. Amendments to IDEA changed any number of requirements and require several new procedures with respect to implementation of educational programs for children with disabilities. OSEP made findings in this Report on the implementation of new requirements regarding the participation of parents in making educational decisions with respect to the identification, evaluation, educational placement and provision of a free appropriate public education of their child, the opportunity for children with disabilities to be involved and progress in the general curriculum, and transition planning for children with disabilities 14 and older. OSEP reviewed 3 monitoring reports of agencies that were monitored by ESE after the enactment of IDEA 1997. OSEP found that ESE did not have procedures to identify these IDEA 1997 requirements.
2. Effective system for resolving complaints regarding violations of Part B
As set forth at 34 C.F.R. §§300.660 -300.662, ESE is required have procedures that insure that any complaint alleging a violation of Part B is resolved within 60 calendar days unless an extension time is necessary based on exceptional circumstances exist with respect to the particular complaint.
In its 1994 monitoring visit, OSEP found ESE out of compliance in informing parents and other interested individuals about complaint procedures and resolving complaints within the 60-day timeline, unless a specific extension of time was granted due to exceptional circumstances. At that time, a significant number of complaints were not resolved within timelines. During its 1997 follow-up monitoring review, OSEP found that 29% of complaints were not resolved within timelines. ESE has shown continued improvement with 14% of complaints at the time of OSEP's on-site review not being resolved within 60 days.
As noted above, comments from public input sessions describe a complaint system that is perceived by parents as ineffective in correcting violations in public agencies. OSEP acknowledges ESE's improvements in this area, however, OSEP finds that ESE has not yet met Part B requirements for an effective complaint management system.
3. Ensuring that all eligible children with disabilities, including those receiving services through charter schools, receive a free appropriate public education.
The Massachusetts Education Act of 1993, among its many provisions, created the option of independently operated public schools, i.e., charter schools. During the 1998-99 school year there were 34 charter schools open, enrolling more than 10,000 students from over 180 districts. Each year ESE receives more applications for new charter schools. Each proposed charter school must submit an application to ESE for approval. If the application is approved, the school is "chartered" for 5 years. The charters can be renewed by ESE after 5 years if the school has been faithful to the terms of its charter and has complied with State and Federal laws.
Massachusetts's law requires that charter schools be open to all students (See MLG Chapter 71, §89). Charter schools are not permitted to discriminate based on disability. If applications for enrollment exceed the number of spaces, then the charter school is required to hold a lottery; thus, children with disabilities have an equal opportunity to attend the charter school. However, public input collected by OSEP during validation planning indicated that children with disabilities were either "counseled" to not enroll in the charter school because the child did not fit into the charter school's program or because the child with a disability was not provided the services necessary for success in the charter school program.
One public school administrator told OSEP that her experience with the charter school was that "one size fits all" and that the charter school tended to provide services based on their model. A public school administrator from a different school district stated, "Many kids are bounced back from charter schools because they can't provide the services. Children with behavioral problems are difficult for charter schools to manage."
In the charter school that OSEP visited during its on-site monitoring, the school's charter application regarding special needs students states, "Any child for whom a mainstream inclusion approach would be an appropriate educational program will be eligible for admission to The School." One finding regarding this school from ESE's monitoring in 1997 was that children with disabilities were not receiving the level of special education service specified in their IEPs. An administrator for the charter school acknowledged to OSEP that there was only 1 child out of approximately 75 in the school who was pulled out of the general education program for individual help and that there was a need for different types of services for children with more serious academic needs.
OSEP reviewed the records of seven children with disabilities in this charter school and interviewed their teachers. All of these children, even those with academic delays of three or four years below their current grade level, received services through the "inclusion program," meaning the general education teacher was an integral part of their special education program. Two of the children did not have the participation of a general education teacher in the development of the IEP, three of children had no accommodations or modifications on their IEPs, and one child had no IEP. A general education and a special education teacher in interviews with OSEP stated that general education did not see the IEPs of children with disabilities, and therefore were unaware of the special education services required to meet the needs of children with disabilities.
OSEP also reviewed the files of several children with disabilities who were "transferred" back to the public school from the charter school. One child, for example, started his school year in a 9th grade general education program. He started to experience some emotional problems that affected his concentration and ability to complete homework assignments. He was evaluated for special education and was immediately placed into a self-contained program and transferred to the resident public school district. The justification on his IEP for removal was "(student) is being treated for emotional difficulties." Another student who was experiencing behavioral problems in the charter school was identified as disabled and placed in a segregated setting by the charter school and transferred back to the resident public school. The public school placed the student back into the general education classroom where she reportedly is doing well without any special education support.
Two public school administrators stated to OSEP in an interview that a significant number of charter school students were returned to the public school district from the charter schools. OSEP visited a charter school within the boundaries of this district. A comparison of the placement rates in special education indicated that 21.1% of the students were identified for special education, while only 10.9% of the charter school population were identified for special education. The district provided OSEP with data that demonstrated that of children who returned to the district from 1995, 19% were special education students. This is twice the rate one would expect. In addition, the rate of special education students returning to the resident district schools shows a steady increase with five returning during 1995-96, nine returning during 1996-97, and 28 returning during 1997-98. Seven of the 28 special education students returning from the charter school during the 1997-98 school year entered the charter school in regular education but returned in a "substantially separate" placement in the resident district school.
Children with disabilities not experiencing success in passing the State-wide assessment
Including students with disabilities in statewide assessments is important in promoting educational accountability for all students, not just students in general education programs. The participation rate for students with disabilities on the MCAS was 92.8%. This compares to a participation rate of 96.6% of all students. It is clear from OSEP interviews that school personnel received the message that students with disabilities are entitled to participate in the MCAS.
However, it should also be noted that 93 to 96% of the students with disabilities in the 10th grade who took the MCAS failed to meet a "proficient" level of performance on at least one section of the test. This compares to 56% to 74% of regular education students who failed to meet a "proficient" level of performance on at least one section of the test. OSEP also heard from parents, students, and teachers a high degree of concern and frustration over the high stakes nature of the test, which could result in not receiving a diploma and the failure level of students with disabilities.
OSEP also reviewed the guidance (The Massachusetts Comprehensive Assessment System: Requirements for the Participation of Students with Disabilities - March 1998) provided by ESE to educators and parents. Because the high failure rate on the MCAS may be the result of inappropriate or inadequate accommodations for children with disabilities, OSEP is concerned that the guidance may have been interpreted by some people to limit the availability of the accommodations provided to children with disabilities. The guidance provides a list of ESE approved accommodations that the guidance says is not an exhaustive list. Schools are instructed to call ESE to review the appropriateness of accommodations if they depart from the accommodations on this list. However, the result may have been to discourage IEP teams from choosing accommodations not on the list rather than seeking additional review.
OSEP suggests that ESE reexamine whether students with disabilities are sufficiently included in the general curriculum so that they have the knowledge to pass the MCAS and whether students with disabilities are provided adequate accommodations and modifications in order successfully perform on the MCAS. In addressing this apparently high failure rate for children with disabilities, it will be important for ESE to ensure that students with disabilities are receiving the instruction and supports that they need so that they can progress in the general curriculum, and the accommodations and modifications they need so that they can demonstrate their knowledge on Statewide assessments.
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