New federal guidance may help address long-standing concerns about how well states ensure that schools meet the requirements of the nation’s primary special education law, advocates for students with disabilities say.
States must act quickly to address concerns that a school is not adequately serving students under the Individuals with Disabilities Education Act, even if those concerns are raised outside of a formal complaint process, that guidance said.
States bear the primary responsibility of ensuring that districts are adequately serving students under IDEA, a process known as “general supervision.” They are obligated to respond to complaints about schools’ failures to, for instance, provide students with needed therapies and supports and ensure students with disabilities aren’t disciplined unfairly.
The guidance states that, if a state has a credible reason to believe a school is out of compliance with the law, it must address it promptly—not wait to respond to a formal complaint.
Nor should it wait for special monitoring that takes place in every district on a six-year cycle, said a 45-page guidance document the U.S. Department of Education’s office of special education and rehabilitative services issued to states this week. Under that cycle, the state reviews data about key issues, like whether schools are updating students Individualized Education Programs on time. But state monitoring should be deeper and broader than that, the guidance said.
Each state must set up a “robust” review systems that “swiftly identifies and corrects noncompliance, increases accountability through the collection of timely and accurate data, and ensures the full implementation of IDEA to improve functional outcomes, and early intervention and educational results for children with disabilities,” the document said.
Addressing noncompliance with IDEA
The guidance comes after the federal agency has repeatedly identified states’ failure to comply with the IDEA, OSEP Director Valerie Williams wrote in an accompanying “Dear Colleague” letter.
Twenty-two states met the requirements of IDEA in the 2022-23 school year, the agency said last month. The law requires schools to provide a free appropriate public education to students with disabilities in regular classrooms to the greatest extent possible by providing services tailored to their individual needs.
Parents and advocates have long complained the law isn’t enforced with proper urgency. States often take a check-the-box approach, tracking a fixed menu of indicators instead of stepping back to see if students are being served by their schools, said Diana Autin, the executive director of the SPAN Parent Advocacy Network, which works with parent organizations to help advocate for students’ needs.
When parents see potential IDEA violations—like failure to properly review students’ Individualized Education Programs or interrupted services when a speech therapist is on parental leave—they may be too intimidated to file a formal complaint, Autin said.
The process can be technical and difficult to navigate, and parents may also fear making the problem worse by upsetting school administrators, she said. Some fear repercussions for speaking up.
The new guidance outlines in detail that each state “has to have a stronger system that allows it to have a better sense of what’s happening on the ground,” rather than heavily relying on parents to sound the alarm, Autin said.
States must take swift action to address concerns
Special education disputes can be both litigious and closely prescribed—a process of formal complaints, dispute resolution, and due process hearings.
The new guidance says states should act on claims made in media reports, parent feedback sessions, and other venues that are often overlooked because they fall outside of those parameters.
For example, federal investigators flagged Virginia’s education department in 2020 when it found that the state failed to respond even after a parent copied state officials on emails sent to school leaders complaining that they were not meeting the requirements in a student’s IEP.
Among the other requirements in the new guidance:
- States must issue a finding of noncompliance within three months of making the determination, rather than waiting for districts to resolve the issue before such a formal action is taken.
- A district cannot be found in compliance until they have completely resolved the issue in question. Some states previously set a lower threshold.
- Districts must address noncompliance as soon as possible, and no later than a year after it is determined.
- States must review individual students’ information, rather than a sample of cases, to ensure that each child affected by noncompliance has their situation resolved.
Advocates urge follow through
Advocacy organizations said the new guidance is a step in the right direction, but they also urged federal officials to ensure that the document leads to meaningful change.
“Our children bear the brunt of the failure to implement IDEA,” said a statement from the Council of Parent Attorneys and Advocates. “Given the importance of monitoring, which has been sorely lacking at all levels, we continue to urge OSEP to take action when States fail their obligations under the law; and though this is a welcome step forward, we hope OSEP does not confuse issuing guidance to States with meaningful action to correct non-compliance.”
