Federal Regulations and Monitoring, Paperwork Reduction and Increased Flexibility | Change from a “Culture of Process” to a Culture of Results | Federal Regulatory Activities Are Off-Target and Inefficient | OSEP Monitoring Report Delivery Times, 1997-2001 | Utilize Federal Special Education Staff More Effectively | Need for Better Intra-Agency and Interagency Coordination | Accountability, State and Local Paperwork, and the Individualized Education Program (IEP) | The Impact of the Paperwork Burden in the Classroom | Early Childhood Programs | Conclusion

Recommendation—Replace Federal Monitoring Practices With A Focused Approach. The U.S. Department of Education should seek to radically change how it conducts technical assistance and monitoring activities to focus on results instead of process. The Department should monitor and provide effective technical assistance on a much smaller number of substantive measures guided by broad federal standards that focus on performance and results.

Recommendation—Reduce Regulatory Burden and Increase Flexibility. The Individuals with Disabilities Education Act should emphasize flexibility to achieve results for children with disabilities, including a unified system of services from birth through 21, and simplify the Individualized Education Program (IEP) to focus on substantive outcomes. The IDEA federal regulatory and administrative requirements imposed on state and local education agencies are burdensome and should be dramatically simplified to be more understandable for parents, educators and administrators. Up to 10 states should be allowed to propose paperwork reduction strategies under IDEA to the Secretary of Education.

Recommendation—Utilize Federal Special Education Staff More Effectively. The U.S. Department of Education’s Office of Special Education and Rehabilitative Services (OSERS) has not been able to meet its obligations and appropriately implement its responsibility under federal law. Within three months of the issuance of this report, the Secretary of Education should provide recommendations to Congress on how OSERS can better utilize its staff and resources to implement federal special education law.

Recommendation—Expedited Results From Expedited Implementation. Consistent with the No Child Left Behind Act, IDEA should provide for expedited implementation of the new IDEA authorization in 12 months. Further, reauthorization should establish a timetable for each section of reauthorization.

At all levels, the Commission finds that the emphasis on IDEA paperwork requirements is unnecessarily onerous. The culture of process compliance begins at the top of the IDEA implementation pyramid and has a dramatic effect all the way down through the bureaucracy to the classroom. Teachers spend far more time completing documentation and paperwork than is merited by any educational or civil rights compliance purpose. Educators spend more time on process compliance than on improving educational performance of children with disabilities.¹ The Commission finds that the U.S. Department of Education’s Office of Special Education Programs (OSEP), which is a division of OSERS, fosters this emphasis as a result of its state and local monitoring methods. These methods place too much emphasis on compliance for process rather than a more effective and efficient strategy focusing monitoring on compliance for performance and results.

< Previous page | ^ Top ^

Change from a “Culture of Process” to a Culture of Results

Two problems arise from this culture of process compliance. First, the emphasis on process has led to use of checklists of more than 814 federal monitoring requirements to determine if schools have implemented all procedural requirements of IDEA. Few of the items on the checklist are directly related to student performance. The National Council on Disability (NCD), and testimony and comments to the Commission, asserted that no state education agency is in compliance or never has been fully in compliance with IDEA. In fact the assistant secretary for the Office of Special Education and Rehabilitative Services, Robert Pasternack, Ph.D., testified before the U.S. Senate on March 21, 2002, that no state is in full compliance with IDEA.² Ironically, even if a school complied with the requirements, families and Congress would have no assurance children were making progress. Current law has become overly procedural and complex. As a result, schools and other education agencies cannot focus on the improvement of student performance and on student transition to independence and self-sufficiency after graduating from high school.

Second, there is little demonstrable link between process compliance and student results and success. While process compliance two decades ago allowed the federal government to determine whether children with disabilities received any education services, then and now it does little to help parents and teachers judge whether those services lead to student success. Indeed, the complaints by NCD, witnesses and the public about the chronic lack of historic compliance with IDEA beg the more fundamental question of whether such procedural compliance has anything to do with actual student achievement and their post-school success. To answer these problems, the Commission recommends that IDEA, its regulations and federal and state monitoring activities be fundamentally shifted to focus on results and accountability for scientifically based services and their continuous improvement.

< Previous page | ^ Top ^

“IDEA’s requirements have created a morass of paperwork that has little to do with student achievement. The ‘regulation heavy’ special education system should be focused less on procedures and more on achieving student results.”

—David W. Peterson, superintendent of the Northern Suburban Special Education District, Highland Park, IL

Federal Regulatory Activities Are Off-Target and Inefficient

In IDEA, Congress directed OSEP to provide grants to states for the education of children with disabilities in accordance with IDEA Part B.³ The IDEA statute does not specify that OSEP must monitor states for compliance with IDEA in the manner OSEP currently practices. It merely requires that states demonstrate to the satisfaction of the Secretary of Education that they have policies and procedures to ensure the basic principles outlined in the statute can be met.⁴

OSEP implements this statutory requirement through a complex compliance review process that includes periodic on-site monitoring of states. The OSEP Monitoring and State Improvement Planning Division (MSIP) is responsible for state plan reviews and approval under IDEA, and for monitoring formula grant programs to ensure consistency with IDEA and the implementing regulations. The Commission finds that the methods historically used by OSEP through its MSIP division are focused on administrative and regulatory compliance at the expense of assisting state and local education agencies in their efforts to educate children with disabilities. The Commission heard testimony that MSIP is attempting to change its monitoring process, but these reforms may be constrained by current law. The Commission further finds that the OSEP-issued regulations implementing IDEA are unreasonably complex; burdensome for state and local agencies to comply; and minimally related to student achievement, results and success.

At a Commission meeting on February 25, 2002, in Houston, TX, experts provided testimony regarding the current status of OSEP federal monitoring activities of states with respect to IDEA. Lawrence Gloeckler, deputy commissioner for Vocational and Educational Services for Individuals with Disabilities in the New York State Education Department, stated his frustration with the focus on process rather than results for children with disabilities.

“In New York state, if you asked how well children were achieving academically, administrators couldn’t answer, but what you could find out is how compliant with the process is the given school district. This is what the federal government asks us to focus on. ... We are now working on the fifth draft of the New York State eligibility document required by OSEP to receive our annual IDEA funds. This year our document is 73 pages, and OSEP is debating over our choice of words with respect to transition services. [W]e have been asked to change our state regulations from inviting a child to a meeting if it discusses transition services to OSEP’s [suggested language of inviting] a child to transition if it's about transition or if it’s about looking at the need for services. Since the State of New York used words that are not identical to OSEP’s, we may need to change our regulations, which means going through a major review in our state, including public hearings and reprinting thousands and thousands of documents, that has nothing to do with providing transition services to students with disabilities at all. In the end we will have done nothing except spend money.”⁵

< Previous page | ^ Top ^

OSEP Monitoring Report Delivery Times, 1997-2001

< Previous page | ^ Top ^

The Commission recommends that the current continuous improvement monitoring system be replaced with one that focuses on student performance and results, and emphasizes continuous improvement in significant, measurable areas related to important compliance findings.⁶ As further support for its findings, the Commission requested that OSEP provide additional information about how much time is spent in the monitoring process and what resources were devoted to state and local compliance monitoring activities.⁷ The Commission’s analysis of the above data provided by OSEP shows that a total of 27 states and territories were monitored between January 1, 1997, and February 1, 2002. While OSEP tells states that a monitoring report will be issued within four to six months of the exit conference with state officials, OSEP’s actual performance is typically between four and 20 months, with an average of 13.6 months during the period noted in the chart (p. 13). OSEP’s response shows that considerable resources are spent on these activities with questionable results. For example, while one state, Utah, was ultimately found to be among the most compliant in the nation, the final report was not issued by OSEP for a full year from the date the state was monitored.

A final OSEP report can be a useful document for technical assistance purposes if the document is provided to the state within the promised length of time. Because of the substantial time between on-site monitoring and the release of reports, most reports are impractical and provide no assurance to Congress or families of the status of IDEA implementation. The Commission recommends that OSEP publicly document the actual time between the date of the on-site exit meeting and the date of issuance of the state compliance report.

“I reviewed OSEP’s monitoring activities over the past five years and found some alarming facts. For example, OSEP’s monitoring division took 20 months completing a follow-up report after a site visit in Wisconsin. After such an extreme delay, the report had lost any impact to amend the state’s behavior.”

—Commissioner Ed Sontag

Data about special education program performance are critical to determine state implementation of federal law and in ensuring children with disabilities and their families are provided with a free appropriate public education in the least restrictive environment. The Commission heard statements about graduation rates, participation in regular school settings and other quantitative information from past annual reports to Congress. However, the identification of trends has been hampered by inconsistent reporting and data formats.

If the culture of monitoring for results is to take hold and the promise of special education is to be achieved, then accurate and consistent data must be gathered, assiduously analyzed and publicly reported in a manner that families and states can use. Congress must know that its law is being effectively implemented and that federal resources are used wisely. The Commission finds the current Annual Report to Congress inadequate. It does not give the public and Congress useful information on the accountability of states and their relative performance in meeting federal requirements and standards for achieving satisfactory results. The Commission recommends that the Department of Education’s Annual Report to Congress on IDEA describe how each state is performing relative to other states. It should also report state performance on a variety of results-oriented dimensions.

< Previous page | ^ Top ^

Utilize Federal Special Education Staff More Effectively

The Commission believes that full implementation of federal law requires a commitment to an appropriately trained and well-utilized staff. The Office of Special Education and Rehabilitative Services—OSEP in particular—has not been able to meet its obligations and appropriately implement its responsibility under federal law. Families and states will not receive the promise of special education without a strong federal office to assist states, reinforce flexibility and innovation, collect important data about results and enforce compliance for results. The Commission recommends that, within three months of the issuance of this report, the Secretary of Education report to Congress recommendations for how OSEP can better utilize its staff and resources to implement federal special education law.

An emphasis on relationships between OSEP staff and state directors of special education blurs the ability to engage in meaningful enforcement actions. Although such relationships may be helpful in terms of providing technical assistance, the current structure of monitoring, technical assistance and enforcement from one OSEP division, the Monitoring and State Improvement Planning Division, is problematic.

“OSEP’s approach to accountability still permits the fox to guard the henhouse. With the target of the oversight controlling the front end of its own monitoring process, it is unlikely that many criticisms will be forthcoming.”

—Patrick J. Wolf and Commissioner Bryan C. Hassel, “Effectiveness and Accountability (Part 1): The Compliance Model,” in Rethinking Special Education for a New Century (2001).

OSEP, through its staff and funded projects, often provides valuable technical assistance to states and local agencies regarding the implementation of federal requirements for effective programs. However, this relationship inhibits the effectiveness, accuracy and validity of federal monitoring. While no state has ever been found to be in full compliance with federal special education law, monitoring has not been shown to be either efficient or effective in ensuring congressional intent. The Commission finds that OSEP has not been effective both in implementing technical assistance and in monitoring compliance program performance in states. The Commission recommends that the assistant secretary for Special Education and Rehabilitative Services take whatever steps necessary to ensure states continuously improve their compliance with IDEA and document improved results, including consideration of a separate office for accountability whose most essential function would be to monitor special education programs.

OSEP has neither the authority nor the resources to investigate and resolve individual complaints alleging noncompliance. Additionally, even though such authority was incorporated into the 1997 IDEA amendments, the Department of Education has not sent a single case to the Department of Justice for ‘substantial noncompliance’.⁸ While the Commission shares the view that regulations are impossible for state and local compliance, this Commission also holds that the current organization of OSEP’s performing monitoring, technical assistance and enforcement should be changed. This current organization does not allow an appropriate separation between those who provide assistance to state and local agencies and those who enforce compliance at the federal level.

Combining technical assistance and monitoring appears to be a promising new strategy, as described by Larry Gloeckler in Houston, TX.⁹ The strategy in New York that he described has been to follow up OSEP monitoring with a focused effort on working with the state to obtain technical assistance in the areas of non-compliance cited during OSEP’s visit. While technical assistance and monitoring should be done separately to ensure the objectivity of monitoring, they should work together to improve results. Monitoring is necessary, but not sufficient on its own, to influence improvement.

< Previous page | ^ Top ^

Need for Better Intra-Agency and Interagency Coordination

Multiple federal requirements for a variety of educational programs implemented by different offices within the U.S. Department of Education can lead to overlapping and discontinuous requirements for accountability and routine reporting. Many of these requirements are unrelated to the expected results to be achieved with students. Many federal requirements of schools from various programs have a direct effect on planning and implementation of services for students with disabilities (e.g., No Child Left Behind). The Commission finds that schools are often unnecessarily burdened by these requirements in that no integrated system of accountability has been developed to ensure efficiency in reporting on federal requirements. Lack of integration often leads to multiple, separate data requirements and on-site visits and local agency personnel unnecessarily distracted from the focus on student results.

For example, the Office for Civil Rights (OCR) frequently investigates and makes findings on issues related to students with disabilities. In some instances, OSEP monitors special education programs or administers corrective actions in the same settings. Communication between the OCR and OSEP is not always sufficient and collaborative to ensure that states and local educational agencies (LEAs) are supported in finding quick resolution and effectively improving results. The Commission recommends that the U.S. Secretary of Education ensure all federal requirements for accountability be integrated into a unified system of accountability throughout the Department.

Numerous witnesses testified that conflicting priorities and requirements at the federal level confound state and local attempts to provide services and programs that will lead to better results and outcomes for students with disabilities while resolving conflicts. Federal agencies with responsibility for educating students with disabilities in special settings (Department of Defense, Bureau of Indian Affairs, etc.) often fail to communicate with the Department of Education regarding essential elements for improving results. Further, data about student performance and results are not systematically collected and disseminated by and across all pertinent federal agencies. Funding for effective programs for students with disabilities at the local level is often complicated by a lack of coordination among agencies with separate funding targeted to meet the needs of these students.

In addition to this Commission, the President has launched his New Freedom Initiative to ensure that all federal agencies work together to reduce barriers to independence for individuals with disabilities. The Commission recommends that the President expand the New Freedom Initiative to address any interagency or intra-agency conflicts or barriers to improving results for infants, toddlers, children and youth with disabilities.

< Previous page | ^ Top ^

Accountability, State and Local Paperwork, and the Individualized Education Program (IEP)

A particularly revealing issue to the Commission was the strikingly high number of parents, teachers and administrators who described how IEPs are not actually designed or used for individualized education; instead they are focused on legal protection and compliance with regulatory processes. During a Commission site visit to a local school, one administrator referred to IEPs as a litigation document rather than an instrument outlining an effective instructional program for students with disabilities. The original concept of IEPs as an instructional framework for a defined period of a child’s education has been lost to the greater need to document legal and procedural compliance. Parents and schools often debate the process of special education with little or no attention to expected results. The Commission believes educators should educate and families must hold schools accountable for compliance with IDEA that generates improved results for students with disabilities.

IEPs should provide a guide for quality instruction and related services for children with disabilities. IEPs must preserve basic civil rights and promote achievement, but we find this is possible while reducing current excessive and repetitious paperwork requirements. The Commission recommends IEP requirements focus on substantive educational and developmental outcomes and results. Failure to meet such outcomes and results would be the basis for additional assistance and enforcement under the law to address individual and systemic non-compliance and achieve excellence in special education.

Among the IEP provisions that would be replaced by measurable annual outcomes and results would be the obligation that IEPs include “benchmarks or short-term objectives.” Their inclusion in IEPs contributes greatly to the paperwork burden on educators and parents, and bears no relationship to the non-linear reality of a child’s development. Members of the child’s IEP team should agree as to the length of evaluative periods and the criteria for judging results. To the extent desired, an IEP team could include such markers. IEPs should also list services as they relate to the achievement of measurable annual outcomes, not as an independent feature in and of themselves as required in current federal law.

< Previous page | ^ Top ^

“The Commission fully supports retaining the basic rights for children and their families already in IDEA and section 504. Preserving these rights in the context of special education reform is a fundamental recommendation of our work.”

—Commissioner Cherie Takemoto

The Impact of the Paperwork Burden in the Classroom

The combination of federal, state and local paperwork requirements creates a heavy burden on teachers, schools and parents. The growing paperwork requirements do not contribute to student results. The Commission finds that the U.S. Department of Education should clearly describe what paperwork requirements are imposed by federal law. State and local paperwork requirements should be changed to reduce this burden.

Students, teachers and families have all complained about requirements for paperwork and documentation driven by the more than 814 federal monitoring requirements for state and local special education programs to comply with IDEA. Often, reported violations of federal, state or other requirements result in local schools and agencies developing additional paperwork requirements rather than directly correcting the violation.

Special education teachers feel excessive paperwork interferes with their ability to serve children with disabilities more effectively. The Study of Personnel Needs in Special Education (SPeNSE) sponsored by OSEP reveals that special education teachers often cite required forms and administrative paperwork as an area of dissatisfaction with their working conditions.¹⁰ The typical special education teacher spends five hours per week completing forms and doing administrative paperwork. Moreover, special educators spend more time on paperwork than grading papers, communicating with parents, sharing expertise with colleagues, supervising paraprofessionals and attending IEP meetings combined.

SPeNSE reinforces the Commission’s findings that the federal emphasis on procedural compliance requirements trickles down to directly impact the amount of time actually spent providing direct services, including instruction to children with disabilities. Process compliance review evolved as the major focus to measure compliance with IDEA because it is more difficult to measure outcomes. This challenge to measure the quality of special education services must be the focus of any federal monitoring activity, what Wolf and Hassel call an obsession with results.

“First and foremost, every element of the system should focus on student learning. This obsession must begin at the federal level, with the way Congress frames the federal mandate and the way Washington structures its funding and oversight of states. Through those mechanisms it must create the same obsession in state educational agencies, so that they in turn structure their funding and oversight of school districts, charter schools and other entities with student-learning results in mind. Prodded by those systems to focus intently on learning outcomes, districts must structure their relationships with schools and other providers to produce results. Ultimately, the people on the front lines, those who work directly with children, must share this obsession.”¹¹

Therefore, the Commission recommends that the reauthorized IDEA include provisions charging the U.S. Department of Education to report back to Congress within 18 months of enactment on strategic proposals to reduce the current paperwork burden. Recognizing that paperwork is a combination of state, local and federal requirements, the Secretary’s strategic plan must examine the problem at all levels. To fully examine this problem, we suggest further that the Secretary determine up to 10 states that will be allowed to submit proposals for IDEA paperwork reduction. States would be allowed a waiver of federal paperwork requirements for a period of time with findings reported to the Secretary prior to his report to Congress. Such proposals promote local innovation to reduce paperwork and will also serve as valuable resources for the Secretary to consider in developing federal strategies to reduce the paperwork burden under IDEA.

< Previous page | ^ Top ^

Early Childhood Programs

The Commission also heard testimony on the IDEA infants and toddlers with disabilities program (Part C). Although witnesses presented testimony indicating that early intervention services for infants and toddlers with disabilities were efficacious and cost-effective, scientifically based programs are not in place in many implementations of Part C. Accountability in Part C is weak and there is a focus on process as opposed to results. The transition from Part C to Part B is often weak. Moreover, services to this population are funded not only through Part C but also through other federal and state efforts. Testimony to the Commission indicated that coordination across programs and with health care providers is often poor. State definitions of eligibility are inconsistent, and different agencies may hold responsibility for developing programs leading to wide differences across states in which infants and toddlers receive services and what services they actually receive. Monitoring by OSEP of these programs has only recently been implemented, with often disappointing results related to compliance.

Despite evidence that early intervention works, this program has been imperfectly implemented in many states and localities. Multiple agency configurations and competing bureaucratic cultures have often left families without the services they need at the time when their infants and toddlers can make the most significant gains. The time has come to take advantage of the evidence of effective programs by simplifying bureaucratic structures so that services can be provided as early as possible to maximize effectiveness for children with disabilities and their families.

The Commission recommends that IDEA ensure a seamless system for infants, toddlers, children and youth with disabilities, birth through 21, drawing together the most effective aspects of Part C (infants and toddlers), section 619 (pre-school) and Part B (school-age). State educational agencies must be appropriately resourced, flexibly enabled and charged to ensure effective results. This revision in the legislation would clarify that states could choose lead agencies for different programs but the state’s educational agency would monitor and enforce compliance for services as a part of the overall monitoring for IDEA. This effort would enhance state flexibility and promote efficient use of funds for services in meeting the needs of all students with disabilities, particularly children between birth and the age of five and their families.

< Previous page | ^ Top ^

Conclusion

Today, much is known about what works and how to provide excellent special education and related services for infants, toddlers, children and youth with disabilities that affect their individual performance. The current regulatory burden that insists on complex procedures stifles the ability of parents, teachers and others to improve results for children with disabilities. The Commission believes that a focus on results and streamlining procedural compliance requirements encourage flexibility, innovation and choices at all levels. This important shift of emphasis is critical to improving how well children with disabilities who receive special education services will actually benefit from such specially designed instruction and related services. The Commission urges a significant reduction in the federal regulatory burden, caused by the current version of IDEA, and simplified regulations. To achieve improved results, the U.S. Department of Education must provide the highest quality technical assistance and monitor compliance with IDEA more effectively.

< Previous page | ^ Top ^