Grants and cooperative agreements; availability, etc.: Special education and rehabilitative services Assistance to State for education of individuals with disabilities program,
[Federal Register: February 23, 2000 (Volume 65, Number 36)]
[Notices]
[Page 9089-9176]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr23fe00-103]
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Part IV
Department of Education
Office of Special Education and Rehabilitative Services; Assistance to States for the Education of Individuals With Disabilities; Notice
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DEPARTMENT OF EDUCATION
Office of Special Education and Rehabilitative Services; Assistance to States for the Education of Individuals With Disabilities
AGENCY: Department of Education.
ACTION: Notice of Written Findings and Decision and Compliance Agreement.
SUMMARY: Section 457 of the General Education Provisions Act (GEPA), 20 U.S.C. 1234f, authorizes the Secretary to enter into Compliance Agreements with recipients that are failing to comply substantially with Federal program requirements. In order to enter into a Compliance Agreement, the Secretary must determine, in Written Findings and Decision, that the recipient cannot comply, until a future date, with the applicable program requirements, and that a Compliance Agreement is a viable means of bringing about such compliance. On December 10, 1999, the Secretary entered into a Compliance Agreement with the Virgin Islands Department of Education (VIDE) and issued Written Findings and Decision on that matter. Under section 457(b)(2) of GEPA, 20 U.S.C. 1234f(b)(2), the Written Findings and Decision and Compliance Agreement are to be published in the Federal Register.
FOR FURTHER INFORMATION CONTACT: Maral Taylor, U.S. Department of Education, Office of Special Education Programs, Mary E. Switzer Building, 400 Maryland Avenue SW, Washington DC, 20202. Telephone: (202) 205-9181. Individuals who use a telecommunications device for the deaf (TDD) may call the TDD number at (202) 205-5388.
Individual with disabilities may obtain this document in an alternate format (e.g., Braille, large print, audiotape, or computer diskette) on request to the contact person listed in the preceding paragraph.
SUPPLEMENTARY INFORMATION: Section 454 of GEPA, 20 U.S.C. 1234c, sets out the remedies available to the Department when it determines that a recipient ``is failing to comply substantially with any requirement of law applicable'' to the Federal program funds administered by this agency. Specifically, the Department is authorized to:
(1) Withhold funds,
(2) Obtain compliance through a cease and desist order,
(3) Enter into a compliance agreement with the recipient, or,
(4) Take any other action authorized by law, 20 U.S.C. 1234c(a)(1)- (4).
The Department's Office of Special Education Programs (OSEP) has been working with VIDE to address their compliance with the requirements of Part B of the Individuals with Disabilities Education Act (IDEA).
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Introduction
The United States Department of Education (the Department) has determined, pursuant to 20 U.S.C. 1234c, that the Virgin Islands Department of Education (VIDE) has failed to comply substantially with the requirements of Part B of the Individuals with Disabilities Education Act (Part B), 20 U.S.C. 1401, 1411-1419.\1\
\1\ Under the Department of Education Organization Act (DEOA), Congress transfers administration of Part B from the Commissioner of Education to the Secretary of Education 20 U.S.C. 3441(a)(1) and (a)(2)(H). Section 20, of the DEOA, 20 U.S.C. 3417, in turn delegates responsibility for Part B to the Assistant Secretary for Special Education and Rehabilitative Services. The Office of Special Education Programs (OSEP), which is part of Office of Special Education and Rehabilitative Services, in the office within the Department is primarily responsible for administering Part B 20 U.S.C. 1402(a).
On June 29, 1998, the Department issued a final monitoring report that documented serious problems with respect to the VIDE's compliance with Part B on the provision of a free appropriate public education in the least restrictive environment to children with disabilities in the Virgin Islands. As a result of these findings, the Department declared VIDE a ``high risk'' grantee and imposed special conditions on its fiscal year 1998 grant award.\2\ The Department found that VIDE:
continues not to ensure provision of a free appropriate public education in the least restrictive environment to students with disabilities. Specifically, VIDE has exhibited a continued failure (1) to provide needed related services as set forth on individualized education programs (IEPs); (2) to ensure personnel in needed service areas; (3) to provide triennial evaluations in a timely manner; and (4) to ensure due process protections. August 28, 1998 Letter from Judith Heumann, Assistant Secretary for Special Education and Rehabilitative Services, to Liston Davis, Commission of Education, VIDE (August 28, 1998 Letter).
\2\ The Department's authority to declare a grantee ``high risk'' and impose special conditions is set out at 34 80.12.
The special conditions required VIDE to provide the Department, among other things, with monthly reports on the Virgin Islands' efforts to come into compliance with Part B. Those reports did not demonstrate significant progress by VIDE in meeting the requirements of Part B. As a consequence, the Department concluded, pursuant to 20 U.S.C. 1234c, that VIDE is not complying with Part B. On April 8, 1999, the Department proposed to VIDE a voluntary Compliance Agreement as a means of ensuring a continued flow of Part B funds to the Virgin Islands while a structured plan to come into full compliance with that statute is implemented.
April 8, 1999 letter from Thomas Hehir, then Director of the Office of Special Education Programs, to Ruby Simmonds, D.A., then Acting Commissioner of Education, Virgin Islands Department of Education (April 8, 1999 Letter).
The purpose of a Compliance Agreement is to bring a ``recipient into full compliance with the applicable requirements of law as soon as feasible.'' 20 U.S.C. 1234f(a). In accordance with the requirements of 20 U.S.C. 1234f(b), public hearings were conducted by Department officials in the Virgin Islands at St. Thomas, on May 18, 1999, and St. Croix, on May 19, 1999. Witnesses representing VIDE, affected students and parents, and other concerned organizations testified at this hearing on the question of whether the Department should grant VIDE's request to enter into a Compliance Agreement. The Department has reviewed this testimony, the Compliance Agreement VIDE has signed, and other relevant materials.\3\ On the basis of this evidence, the Department concludes, and issues written findings as required by 20 U.S.C. 1234f(b)(2), that VIDE has met its burden of establishing the following: (1) That compliance by VIDE with Part B is not feasible until a future date, and (2) that VIDE will be able to carry out the terms and conditions of the Compliance Agreement it has agreed to sign and come into full compliance with Part B within three years of the date of this decision. During the effective period of the Compliance Agreement, three years from the date of this decision, VIDE will be eligible to receive Part B funds as long as it complies with all the terms and conditions of the Agreement. Any failure by VIDE to meet these conditions will authorize the Department to consider the Compliance Agreement no longer in effect. Under such circumstances, the Department may take any action authorized under the law, including the withholding of Part B funds from VIDE or referral to the Department of Justice. At the end of the effective period of the Compliance Agreement, VIDE must be in full compliance with Part B in order to
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maintain its eligibility to receive funds under that program. 20 U.S.C. 1234c.
\3\ A copy of the Compliance Agreement, which was prepared by VIDE in conjunction with representatives of the Department, is appended to this decision as Appendix A.
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Relevant Statutory and Regulatory Provisions
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Part B of the Individuals With Disabilities Education Act
Part B, formerly Part B of the Education of the Handicapped Act, was passed in response to Congress' finding that a majority of children with disabilities in the United States ``were either totally excluded from schools or (were) sitting idly in regular classrooms awaiting the time when they were old enough to drop out.'' H. Rep. No. 332, 94th Cong., 1st Sess. 2 (1975), quoted in Board of Education v. Rowley, 458 U.S. 176, 181 (1982).\4\ Part B provides Federal financial assistance to those State educational agencies (SEAs) that have in effect a policy to ensure that ``(a) free appropriate public education (FADE) is available to all children with disabilities residing in the State between the ages of three and twenty-one * * *'' 20 U.S.C. 1412(a)(1).\5\ FAPE is defined as special education and related services that:
\4\ Congress first addressed the problem of educating individuals with disabilities in 1966 when it amended the Elementary and Secondary Education Act of 1965 for the purpose of ``assisting the States in the initiation, expansion, and improvement of programs and projects for the education of handicapped children.'' Pub. L. 89-750, section 161, 80 Stat. 1204. The program was repealed in 1970 by the Education of the Handicapped Act, Pub. L. 91-230, 84 Stat. 175, Part B of which established a grant program similar in purpose to that of the repealed legislation. Spurred by two district court decisions holding that children with disabilities should be given access to a public education, Mills v. District of Columbia Board of Education, 348 F. Supp. 866 (D.D.C. 1972), and Pennsylvania Ass'n for Retarded Children v. Commonwealth of Pennsylvania, 334 F. Supp. 1257 (E.D. Pa. 1971), in 1974 Congress greatly increased Federal funding for education of individuals with disabilities and for the first time required recipient States to adopt a ``goal of providing full educational opportunities to all handicapped children.'' Pub. L. 93-380, 88 Stat. 579, 583. This statute was recognized as an interim measure only, giving Congress an ``additional year in which to study what if any additional Federal assistance (was) required to enable the States to meet the needs of handicapped children.'' H.R. Rep. No. 94-332, at 4. The study led to the enactment of Part B. Part B was recently amended by the Individuals with Disabilities Education Act Amendments of 1997, Pub. L. 105-17.
\5\ Part B defines ``child with disabilities'' to mean a child with ``mental retardation, hearing impairments (including deafness), speech or language impairments, visual impairments (including blindness), serious emotional disturbance (hereinafter referred to as `emotional disturbance'), orthopedic impairments, autism, traumatic brain injury, other health impairments or specific learning disabilities; and who, by reason thereof, needs special education and related services.`` 20 U.S.C. 1401(3)(A). For a child aged 3 through 9, the term ``child with disabilities * * * may, at the discretion of the State and the local educational agency, include a child experiencing developmental delays, as defined by the State and as measured by appropriate diagnostic instruments and procedures, in one or more of the following areas: Physical development, cognitive development, communication development, social or emotional development or adaptive development; and who, by reason thereof, needs special education and related services.'' 20 U.S.C. 1401(3)(B).
(a) Are provided at public expense, under public supervision and direction, and without charge;
(b) Meet the standards of the SEA, including the requirements of this part;
(c) Include preschool, elementary school, or secondary school education in the State; and
(d) Are provided in conformity with an individualized education program (IEP) that meets the requirements of Secs. 300.340-300.350. 34 CFR 300.13.
In order to ensure that FAPE is provided, a State must ensure that the Part B requirements regarding evaluation, reevaluation, related services, timeliness and implementation of due process decisions, child find, and the least restrictive environment are met. Part B requires VIDE to ensure that:
All children with disabilities residing in the State (or territory), including children with disabilities attending private schools, regardless of the severity of their disabilities, and who are in need of special education and related services, are identified, located, and evaluated * * *
20 U.S.C. 1412(a)(3)(A). Moreover, a child with a disability cannot receive an initial special education placement until an initial evaluation has been performed in accordance with section 614(a)(1) (B) and (C) of Part B. 20 U.S.C. 1414(a)(1)(A).\6\ All children with disabilities must be placed in the least restrictive environment appropriate to their individual needs. 20 U.S.C. 1412(a)(5)(A) and 34 CFR Secs. 300.500-300.556. After initial evaluation and placement, children with disabilities must be reevaluated at least every three years. 20 U.S.C. 1414(a)(2).
\6\ Part B does not set forth a specific standard for conducting initial evaluations within a reasonable period of time, the determination or such standard is reserved to individual States, Commonwealths, and territories, and each of these entities must ensure that each educational program for their children with disabilities meets the education standards of the State, commonwealth, or territory. VIDE commits itself in the Compliance Agreement to providing a child with an initial evaluation and a determination of eligibility for special education and related services within 45 school days of referral. See Appendix A, Compliance Goal Statement 1.1a (Expected Outcomes).
Related services is defined to mean: transportation and such developmental, corrective, and other supportive services (including speech-language pathology and audiology services, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, counseling services, including rehabilitation counseling, orientation and mobility services, and medical services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a child with a disability to benefit from special education, and includes the early identification and assessment of
disabling conditions in children.
20 U.S.C. 1401(22). The IEP for each child with a disability must specify the related services that are to be provided. 34 CFR 300.347(a)(3).
VIDE must also ensure that its due process system, which is a critical component of IDEA designed to protect the rights of children and their parents, meets the requirements of Part B. Because VIDE has a single tier due process system, a final decision must be issued no later than 45 days after receipt of a request for a due process hearing. 34 CFR 300.511.
Finally, VIDE is responsible for ensuring that the requirements of Part B are carried out by exercising general supervisory authority over the provision of special education and related services in the Virgin Islands. The Part B regulations specifically provide that:
(a) The SEA is responsible for ensuring--
(1) That the requirements of this part are carried out; and
(2) That each educational program for children with disabilities administered within the State, including each program administered by any other State or local agency--
(i) Is under the general supervision of the persons responsible for educational programs for children with disabilities in the SEA; and
(ii) Meets the education standards of the SEA (including the requirements of this part).
34 CFR 300.600. This requirement must be read in conjunction with VIDE's responsibility under the General Education Provisions Act (GEPA), at 20 U.S.C. 1232d(b)(3), to adopt and use proper methods of administering the Part B program, including, among other requirements: (1) Monitoring of agencies, institutions, and organizations responsible for carrying out Part B; (2) the enforcement of the obligations imposed on those agencies, institutions, and organizations under Part B; (3) providing technical assistance, where necessary, to such agencies, institutions, and organizations; and (4) the correction of deficiencies in program operations that are identified through monitoring or evaluation.
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Department's Authority To Enter Into a Compliance Agreement
Part B authorizes the Department, if a State fails to comply substantially with the requirements of that statute, either to withhold funds from that State or
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refer the matter to the Department of Justice. 20 U.S.C. 1416(a). GEPA provides the Department with additional options for dealing with a grant recipient that it concludes is ``failing to comply substantially with any requirements of law applicable to such funds.'' 20 U.S.C. 1234c. These remedies include issuing a cease and desist order. 20 U.S.C. 1234c. As an alternative to withholding funds issuing a cease and desist order, or referral to the Department of Justice, the Department may enter into a Compliance Agreement with a recipient that is failing to comply substantially with specific program requirements. 20 U.S.C. 1234f. In this instance, the Department has decided to address VIDE's failure to comply substantially with the requirements of Part B through a Compliance Agreement.
The purpose of a Compliance Agreement is ``to bring the recipient into full compliance with the applicable requirements of the law as soon as feasible and not to excuse or remedy past violations of such requirements.'' 20 U.S.C. 1234f(a). Before entering into a Compliance Agreement, the Department must hold a hearing at which the recipient, affected students and parents or their representatives, and other interested parties are invited to participate. In that hearing, the recipient has the burden of persuading the Department that full compliance with the applicable requirements of law is not feasible until a future date and that a Compliance Agreement is a viable means for bringing about such compliance. 20 U.S.C. 1234f(b)(1). If, on the basis of all the evidence available to it, the Secretary determines that compliance is genuinely not feasible until a future date and that a Compliance Agreement is a viable means for bringing about such compliance, he is to make written findings to that effect and publish those findings, together with the substance of any Compliance Agreement, in the Federal Register. 20 U.S.C. 1234f(b)(2).
A Compliance Agreement must set forth an expiration date, not later than, 3 years from the date of the Secretary's written findings under 20 U.S.C. 1234f(b)(2), by which time the recipient must be in full compliance with all program requirements. In addition, the Compliance Agreement must contain the terms and conditions with which the recipient must comply during the period that the Agreement is in effect. 20 U.S.C. 1234f(c). If the recipient fails to comply with any of the terms and conditions of the Compliance Agreement, the Department may consider the Agreement no longer in effect and may take any action authorized by law, including withholding of funds, issuing of a cease and desist order, or referring the matter to the Department of Justice. 20 U.S.C. 1234f(d).
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Analysis
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Overview of Issues To Be Resolved in Determining Whether a Compliance Agreement is Appropriate
The Department, in deciding whether it is appropriate to enter a Compliance Agreement with VIDE, must first determine whether compliance by VIDE with Part B, including the requirements concerning evaluations, reevaluations, provision of special education and related services, timeliness of due process decisions, and general supervision is not feasible until a future date. 20 U.S.C. 1234f(b). If immediate compliance with these requirements is possible, then VIDE's continued receipt of Part B funds must be based on its coming into full compliance now, rather than its attaining compliance under the terms of an Agreement that can last up to three years. The second issue that must be resolved is whether VIDE will be able, within a period of up to three years, to come into compliance with Part B. Moreover, not only must VIDE come into full compliance by the end of the effective period of the Compliance Agreement, it must also make steady and measurable progress toward that objective while the Compliance Agreement is in effect. If such an outcome is not possible, then a Compliance Agreement between the Department and VIDE would not be appropriate under 20 U.S.C. 1234f.
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The Noncompliance of VIDE With the Part B Requirements Identified in the Compliance Agreement Cannot Be Corrected Immediately
VIDE's failure to comply with the requirements of Part B is long- standing, caused by a number of complex facts, and, as a result, cannot be corrected immediately. The witnesses who testified at the public hearings and the Department's experience in monitoring VIDE's special education program during the past decade provide compelling support for this conclusion.
Amelia Headley Lamont, counsel for the plaintiffs in Jones v. the Government of the Virgin Islands, Civil Action No. 1984-47 (D.V.I.)--a class action lawsuit brought on behalf of the parents of children with disabilities--stated that:
The first complaint (filedin the class action lawsuit)* * * dealt with four specific issues* * * (1) a denial of transportation services; (2) denial of related services; (3) denial of administrative due process; and (4) denial of an appropriate educational placement. All of these issues that gave rise to the filing of this action back in 1984 (are still at issue)* * *today. U.S. Department of Education Compliance Agreement hearing, May 19, 1999, St. Croix, Virgin Islands (May 19, 1999 hearing).
Eleanor Hirsch, Assistant Director of the Virgin Islands University Affiliate Program, provided a litany of frustrations and barriers that parents of children with disabilities in the Virgin Islands have experienced. Ms. Hirsch noted:
a fifteen-year class action suit for lack of related services; lack of qualified teachers and other professionals, shortage of assistive technology devices; lack of inclusion with the supports and services necessary for success; no real line of authority for compliance within individual schools, unmet timelines for evaluation and assessment, IEP process, and placement; creation and implementation of individual transition plans; lack of due process; lack of Advisory Panels; and inaccessibility of buildings and programs. Id.
Information gathered by the Department confirms the views of these witnesses that VIDE are not in substantial compliance with Part B. In issuing its 1998 Part B monitoring report on VIDE, the Department noted a lack of progress in implementing a corrective action plan to deal with problems--identified in a 1993 monitoring report--concerning the provision of related services, personnel in needed service areas, and timely triennial evaluations. June 29, 1998 Letter from Thomas Hehir, then Director of OSEP to Liston Davis then Commissioner of Education, VIDE. That 1998 monitoring report also delineates specific Part B requirements that VIDE is failing to meet.
According to that report, VIDE is not providing required related services to 207 of the 1771 students with disabilities it is responsible for serving. Enclosure B to OSEP's 1998 Monitoring Report on the Virgin Islands. Because of transportation problems, students with disabilities in the Virgin Islands frequently are not in school for six hours, a full school day as defined by VIDE's established standards. According to the report:
a building administrator stated that every day, students from five to eight classes in the school come to school from 30 to 40 minutes late; when buses break down (which frequently occurs) the children do not come to school at all. Id.
OSEP was informed by a teacher at this same school: that the students in her class lose up to 45 minutes each day, at least four days per week due to problems with transportation. Id.
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Consequently, VIDE is not, as required, by 34 CFR 300.13, ensuring that students with disabilities receive a free appropriate public education that meets the standards of the SEA. OSEP's monitors also found that VIDE is not ensuring, as required by 34 CFR 300.550(b)(2), that students with disabilities are educated in the regular educational environment unless the nature or severity of their disability justifies a more restrictive environment. Id.
The validity of this finding--and the substantial nature of VIDE's noncompliance--is confirmed by data provided by VIDE to the Department which indicates that, in December 1998, there were no students with disabilities in the Virgin Islands being served solely in the regular education setting. Finally, the 1998 report finds that VIDE is not, as required by Part B, including a statement of needed transition services for students with disabilities that have reached the age of sixteen. (Where appropriate, this statement is also required to be a part of the IEPs for younger students). Id.
After the monitoring report was issued, VIDE informed the Department that the IEP's of 246 students, who are covered by this requirement, did not contain a statement of transition services. Overall, OSEP has found that VIDE is not in substantial compliance with Part B and that this is a long-standing problem.
VIDE acknowledges that it is not complying with Part B. During the public hearings, VIDE pointed out that 196 children in the Virgin Islands have not been provided with timely initial evaluations and that 697--out of a total population of students with disabilities being serviced by VIDE of 1771--have not received timely reevaluations. VIDE's Position Statement for the Compliance Agreement Public Hearing. In addition, VIDE conceded in the hearings that it does not have a due process hearing officer and that, as a consequence, could not resolve the 23 due process complaints that were pending as of March 1999. May 19, 1999 Public Hearing. Finally, VIDE admitted, during the public hearings, that it does not have the policies and procedures needed to carry out its general supervision responsibilities. VIDE's Position Statement for the Compliance Agreement Public Hearings. The one effort VIDE made to monitor its special education program failed to identify and require correction of many important violations of Part B. May 14, 1999 VIDE Office of Special Education Program, Monitoring Report. Given the substantial noncompliance with Part B identified by OSEP through its monitoring, and VIDE's own acknowledgement of these problems, we conclude that VIDE has failed to meet its obligation, under 34 CFR 300.600, to ensure that the requirements of Part B are being met in the Virgin Islands.
There are a number of complex causes for VIDE's long-term failure to comply with Part B. One of the barriers to immediate compliance is a financial crisis that the Virgin Islands is currently facing. VIDE's Commissioner of Education, Ruby Simmonds, explained that these financial problems make it difficult for VIDE to obtain access to funds to pay for the equipment, services, and personnel needed to meet Part B. May 19, 1999 Public Hearing. The validity of this concern is confirmed by a Department of Interior audit report that concluded that certain agencies of the Virgin Islands have systemic financial management weaknesses. These financial weaknesses include violating the Cash Management Improvement Act by drawing down Federal funds and not promptly spending those funds and making improper interfund transfers between various Federal accounts. Audit Report of the U.S. Department of Interior, Office of Inspector General, No. 98-I-670 (September 1998). These actions affected funds of the VIDE and have led this Department to declare VIDE a ``high risk'' grantee for fiscal management reasons.\7\
\7\ This designation of VIDE as a ``high risk'' grantee because of the fiscal management weaknesses identified by the Department of Interior audit report is distinct from the Departments designation of VIDE as a ``high risk'' grantee in August 1998 because of that agency's problems with meeting Part B. See pages 1-2 of this memorandum, August 28, 1998, supra.
Another barrier which affects the ability of VIDE to comply with Part B is a lack of qualified related service personnel. VIDE Position Statement for Part B Compliance Agreement Public Hearings. Even if access to funds were not an issue, VIDE could not, acting on its own, rapidly resolve this personnel shortage. First, VIDE's collective bargaining agreement with its employee unions provides that related services providers, such as speech/language therapists, occupational therapists and physical therapists, have to be paid on the teacher's salary scale. That salary scale, however, is not adequate to attract qualified related services personnel. The result is that VIDE has found that it is ``next to impossible'' to hire new staff. Department of Education 1998 Part B Monitoring Resort on VIDE, Attachment B at 6. In addition, efforts to contract for the services of related services providers--as an alternative to hiring them as employees--have been challenged by VIDE's employee unions. May 19, 1999 Pubic Hearing. Finally, even when a qualified person who is willing to work for VIDE is found, a time consuming and cumbersome hiring process that is not under the control of VIDE must be completed before this person can start working. Id.
Removing all these barriers to obtaining needed personnel will require a long-term and systematic effort on VIDE's part that will involve working with its employee union and other agencies of the Virgin Islands to change existing policies and practices so that an effective strategy for training and recruiting qualified related services providers can be implemented. Similar efforts will be needed to remove barriers that prevent VIDE from obtaining, among other things, reliable transportation for students with disabilities and timely resolution of due process hearings.
The evidence gathered by the Department at the public hearings and through its monitoring of VIDE's special education program clearly establishes an extensive failure to meet the requirements of Part B. This failure is comprehensive, affecting, among other things, the provision of timely evaluations and reevaluations, special education and related services, serving students with disabilities in the least restrictive environment, transportation of students, timely resolution of due process, and VIDE's exercise of its responsibility to provide general supervision of services for students with disabilities. These problems are not isolated examples of noncompliance that can be quickly or easily corrected, but the outgrowth of long-term and systemic failures. As such, and as illustrated by the difficulties VIDE faces in hiring qualified related services providers, VIDE's failure to comply with Part B cannot be easily resolved but can only be effectively dealt with through a comprehensive and long-term process of change. The Department, therefore, concludes that VIDE cannot come into immediate compliance with the requirements of Part B.
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VIDE Can Meet the Terms and Conditions of a Compliance Agreement and Come Into Full Compliance With the Requirements of Part B Within Three Years
The Department has concluded that VIDE can meet the terms and conditions of the attached Compliance Agreement and come into full compliance with Part B within three years. New leadership at the VIDE, which recognizes the
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problems with the Virgin Islands' special education system, has been working with this Department to devise and implement appropriate remedies. This constructive and proactive approach on the part of VIDE's leadership is a critical first step to bringing the Virgin Islands into compliance with Part B. Moreover, the terms and conditions of the Compliance Agreement and special conditions that the Department will be imposing on VIDE's Part B grant award address the financial management and other problems that have undermined the ability of the Virgin Islands to meet its obligations under Part B.
In January 1999, Governor Charles W. Turnbull took office in the Virgin Islands and, during the past year, has appointed new officials to lead VIDE. VIDE's new leadership team has been willing to acknowledge that students with disabilities in the Virgin Islands are not being properly served and take responsibility for identifying the causes of that problem and possible solutions. During the public hearings, VIDE's Commissioner stated:
I'm not making excuses for us. I know that there have been problems. I know that in some instances [VIDE] has messed up. But we are now in the process of revisiting where we are and making an effort to change those things. Since I've been on board, I've appointed a new director for the Special Education Division (who) has been reviewing the budget, the State plan and those things, beginning to make a difference in terms of how the program is run. Additionally our Assistant Commissioner has just come on board. She has joined us on Thursday, Dr. Noreen Michael * * * She is going to have oversight for special education among some other responsibilities. And because of Dr. Michael's background in educational psychology and other things she is going to be * * * able to assist us pulling this Division in shape. I ask you to give us a chance to do the work that is necessary to make Special Education work for you and your children. May 18, 1999 Public Hearing.
VIDE's new Commissioner and other top administrators have agreed to take responsibility for reforming the Virgin Islands' special education system. Because of the difficulty of this task, the dedication of VIDE's leadership to its attainment is a critical element to successful implementation of the Compliance Agreement.
The Department, in deciding whether VIDE can successfully implement a Compliance Agreement, has also taken into account the level of funding that VIDE receives under Part B. As an outlying area, VIDE receives its Part B award from the one percent set aside for outlying areas and freely associated States. 20 U.S.C. 1411(b). Under this provision, VIDE's Part B grant award for fiscal year 1999 will be $8,852,007, $4,998 per student. By contrast, the 50 States, the District of Columbia, and Puerto Rico receive $690 per student. This level of Federal support, even if local economic problems prevent the Virgin Islands from increasing its expenditure of its own funds on students with disabilities, provides VIDE with substantial financial resources needed to carry out the Compliance Agreement.
As noted earlier, however, financial management weaknesses of the Virgin Islands government have had an adverse impact on VIDE's capacity to gain access to those Part B funds to pay for needed personnel, equipment and services. See page 11 of this memorandum. Special financial management conditions that the Department will impose on VIDE's Part B grant awards, starting this fiscal year, are designed to address this problem. These special conditions are incorporated by reference into the Compliance Agreement. See Compliance Goal 7 of the Compliance Agreement. Under those special conditions, VIDE will have to establish a separate account for its Part B grant. Commingling of the Part B funds with other State, local, or Federal funds will be prohibited. The special Part B account will be limited to being used for purposes allowable under that program. Finally, VIDE will have to provide the Department with periodic reports on its expenditure of Part B funds, including the date of the expenditure and the number of days between drawdown of the Part B funds and their actual disbursement. All of these special financial management conditions will help to make Part B funds readily available to VIDE and help to remove one of the barriers to an improved special education system for the Virgin Islands' children with disabilities.
Finally, the Compliance Agreement itself sets out a realistic and detailed plan--that can be effectively monitored by the Department--for bringing VIDE into compliance with Part B. At the heart of the Compliance Agreement are seven Compliance goal statements that address the major areas of VIDE's noncompliance with Part B; timely evaluations and eligibility determinations, providing FADE to students with disabilities in the Virgin Islands, least restrictive environment, obtaining sufficient personnel, complaint resolution, general supervision, and fiscal accountability. Under each of these Compliance goal statements, VIDE sets out the specific steps that it will take to overcome the barriers that have prevented it from meeting the particular requirement in question in the past. For example, under Compliance goal 4, obtaining sufficient qualified personnel, VIDE sets out 19 ``Strategies/Key activities'' that it will undertake to meet this goal. These activities address the specific barriers noted above to obtaining qualified personnel: the noncompetitive salary scale for related services personnel, the slow and cumbersome hiring process, and employee union challenges to contracting for needed personnel. In addition, VIDE commits itself to working with universities in the Virgin Islands and establishing a tuition assistance program in order to increase the supply of qualified related services personnel. The Compliance Agreement also identifies the VIDE official responsible for carrying out each of the ``Strategies/Key Activities.'' Thus, a specific official can be held accountable if an activity delineated in the Compliance Agreement is not properly implemented.
In addition to specifying overall compliance goals, a plan for meeting them, and the VIDE official responsible for implementing the specific actions steps, the Compliance Agreement also sets out interim goals that VIDE must meet during the next three years in attaining compliance with Part B. See Tables A--G of the Compliance Agreement. Therefore, VIDE is committed not only to being in full compliance with Part B within three years, but to meeting a stringent, but reasonable, schedule for reducing the number of students not being properly served in the Virgin Islands. The Compliance Agreement also sets out data collection and reporting procedures that VIDE must follow. These provisions will allow the Department to ascertain promptly whether or not VIDE is meeting each of its commitments under the Compliance Agreement. The Compliance Agreement, because of the obligations it imposes on VIDE, will provide the Department with the information and authority it needs to protect the Part B rights of the Virgin Islands' students.
VIDE has developed a thorough and reasonable plan for addressing the underlying causes of its failure to comply with Part B. Moreover, because of the level of funding it receives under Part B, and special financial management conditions that will be imposed on its Part B grant award, VIDE should have access to the financial resources needed to implement that plan. For these reasons, the Department concludes that VIDE can meet all the terms and conditions of the Compliance Agreement and come into full
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compliance with Part B within three years.
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Conclusion
For the foregoing reasons, the Department finds that: (1) Full compliance by VIDE with the requirements of Part B is not feasible until a future date, and (2) VIDE can meet the terms and conditions of the attached Compliance Agreement and come into full compliance with the requirements of Part B within three years of the date of this decision. Therefore, the Department determines that it is appropriate for this agency to enter into a Compliance Agreement with VIDE. Under the terms of 20 U.S.C. 1234f, this Compliance Agreement becomes effective on the date of this decision.
Electronic Access to This Document
You may view this document, as well as all other Department of Education documents published in the Federal Register, in text or Adobe Portable Document Format (PDF) on the Internet at either of the following sites:
http://ocfo.ed.gov/fedreg.htm http://www.ed.gov/news.html
To use the PDF you must have the Adobe Acrobat Reader Program with Search, which is available free at either of the previous sites. If you have questions about using the PDF, call the U.S. Government Printing Office (GPO), toll free, at 1-888-293-6498; or in the Washington, DC area at (202) 512-1530.
Note: The official version of a document is the document published in the Federal Register. Free Internet access to the official edition of the Federal Register and the Code of Federal Regulations is available on GPO Access at: http:// www.access.gpo.gov/nara/index.html
Authority: 20 U.S.C. 1234c and 1234f and 20 U.S.C. 1401, 1411- 1420.
Dated: February 16, 2000. Richard W. Riley, Secretary of Education.
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APPENDIX A--COMPLIANCE AGREEMENT
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APPENDIX B--TABLES
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[FR Doc. 00-4085Filed2-22-00; 8:45 am]
BILLING CODE 4000-01-C
