[Federal Register Volume 63, Number 148 (Monday, August 3, 1998)]
[Notices]
[Pages 41370-41382]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-20655]



[[Page 41369]]

_______________________________________________________________________

Part IV





Department of Education





_______________________________________________________________________



Office of Special Education and Rehabilitative Services; Assistance to 
States for the Education of Individuals With Disabilities; Notice

  Federal Register / Vol. 63, No. 148 / Monday, August 3, 1998 / 
Notices  

[[Page 41370]]



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.

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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 March 10, 1998, 
the Secretary entered into a Compliance Agreement with the District of 
Columbia Public Schools (DCPS) 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: Dr. Gregory R. Corr, U.S. Department 
of Education, Office of Special Education Programs, Mary E. Switzer 
Building, 600 Independence Avenue S.W., Washington D.C., 20202-2722. 
Telephone: (202) 205-9027. Individuals who use a telecommunications 
device for the deaf (TDD) may call the TDD number at (202)260-5137.
    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 DCPS over a number of years to address its serious 
and on-going failure to comply with the requirements of Part B of the 
Individuals with Disabilities Education Act (IDEA). On February 4 and 
5, 1997, OSEP--as part of its regular monitoring program--conducted 
public meetings at which parents, advocates, representatives of 
professional groups, and concerned members of the community provided 
testimony indicating that DCPS had failed to meet many of the 
requirements of Part B. The testimony indicated that several of the 
violations that had been identified in prior OSEP monitoring reports 
had not been corrected. On February 10, 1997, OSEP met with General 
Julius W. Becton, Jr., superintendent and chief executive officer for 
DCPS, and members of his staff to discuss OSEP's serious concerns with 
ongoing compliance issues in DCPS' special education programs. General 
Becton and his staff acknowledged that the District's special education 
programs did not comply with the requirements of Part B and informed 
OSEP that DCPS was developing a strategic plan to address these 
violations.
    In a March 27, 1997 letter, General Becton informed OSEP that he 
believed that developing a compliance agreement would be an appropriate 
course of action which would be in the best interests of the children 
of the District of Columbia. The purpose of a Compliance Agreement ``is 
to bring the recipient into full compliance with the applicable 
requirements of law as soon as feasible and not to excuse or remedy 
past violations of such requirements.'' 20 U.S.C. 1234f(a). In order to 
enter into a Compliance Agreement with a recipient, the Secretary must 
determine that compliance until a future date is not genuinely feasible 
and that a Compliance Agreement is a viable means for bringing about 
such compliance.
    On March 10, 1998, the Secretary issued Written Findings and 
Decision which held that compliance by DCPS with the Part B 
requirements to ensure that a free appropriate public education is made 
available to all eligible children and youth with disabilities was 
genuinely not feasible until a future date because of the ``magnitude 
of the problem'' and the ``complex and long-term causes'' underlying 
that problem, including an inadequate management system for its special 
education program. The Secretary also determined that the Compliance 
Agreement represents a viable means of bringing about compliance 
because of the steps DCPS has already taken to address its 
noncompliance, its commitment of resources and the plans it has 
developed for further action. Moreover, the Agreement sets out a very 
specific schedule that DCPS must meet in coming into compliance with 
the Part B requirements. This schedule, coupled with specific data 
collection and reporting requirements, will allow the Department to 
monitor closely DCPS' progress in meeting the terms of the Compliance 
Agreement. The Secretary signed the Compliance Agreement on March 10, 
1998. The superintendent and chief executive officer for DCPS, General 
Julius W. Becton, Jr. signed the Agreement on March 16, 1998.
    As required by section 457(b)(2) of GEPA, 20 U.S.C. 1234f(b)(2), 
the full text of the Secretary's Written Findings and Decision in the 
Matter of the Request of the District of Columbia Public Schools to 
Enter into a Compliance Agreement and the binding provisions of the 
Compliance Agreement are set forth in this publication. The Action Plan 
items mentioned in the introduction are not included in this Notice 
because they were included in the Compliance Agreement for 
informational purposes only, to demonstrate DCPS' commitment to coming 
into full compliance with IDEA, and are not binding on DCPS. OSEP will 
make copies of the Action Plan available to the public upon request.

Electronic Access to This Document

    Anyone may view this document, as well as all other Department of 
Education documents published in the Federal Register, in text or 
portable document format (pdf) on the World Wide Web 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 at (202) 512-1530 or, toll free at 1-888-293-6498.
    Anyone may also view these documents in text copy only on an 
electronic bulletin board of the Department. Telephone: (202) 219-1511 
or, toll free, 1-800-222-4922. The documents are located under Option 
G--Files/Announcements, Bulletins, and Press Releases.


[[Page 41371]]


    Notes: The official version of a document is the document 
published in the Federal Register.

(Authority: 20 U.S.C. 1234c and 1234f and 20 U.S.C. 1401, 1411-
1420.)

    Dated: July 28, 1998.
Richard W. Riley,
Secretary of Education.

Text of the Secretary's Written Findings and Decision

I. Introduction

    The United States Department of Education (the Department) has 
determined, pursuant to 20 U.S.C. Secs. 1234c and 1234f, that the 
District of Columbia Public Schools (DCPS) failed to comply 
substantially with the requirements of Part B of the Individuals with 
Disabilities Education Act (Part B), 20 U.S.C. Secs. 1401, 1411-1419, 
and that it is not feasible for DCPS to achieve full compliance 
immediately. The Department's Office of Special Education Programs 
(OSEP) has been working with DCPS over a number of years to address its 
serious and on-going failure to comply with the requirements of Part B. 
On February 4 and 5, 1997, OSEP--as part of its regular monitoring 
program--conducted public meetings at which parents, advocates, 
representatives of professional groups, and concerned members of the 
community provided testimony indicating that DCPS had failed to meet 
many of the requirements of Part B. The testimony indicated that 
several of the violations that had been identified in prior OSEP 
monitoring reports had not been corrected. On February 10, 1997, OSEP 
met with General Julius W. Becton, Jr., superintendent and chief 
executive officer for DCPS, and members of his staff to discuss OSEP's 
serious concerns with ongoing compliance issues in DCPS' special 
education programs. General Becton and his staff acknowledged that the 
District's special education programs did not comply with the 
requirements of Part B and informed OSEP that DCPS was developing a 
strategic plan to address these violations. In a March 27, 1997 letter, 
General Becton informed OSEP that he believed that developing a 
compliance agreement pursuant to 20 U.S.C. 1234f would be an 
appropriate course of action which would be in the best interests of 
the children of the District of Columbia.
    The purpose of a Compliance Agreement is to bring a ``recipient 
into full compliance with the applicable requirements of law as soon as 
feasible and not to excuse or remedy past violations of such 
requirements.'' 20 U.S.C. 1234f(a). In accordance with the requirements 
of 20 U.S.C. 1234f(b)(1), a public hearing was conducted in the 
District of Columbia by Department officials on June 18, 1997, at the 
Logan Administration Building. Witnesses representing DCPS, affected 
students and parents, and other concerned organizations testified at 
this hearing on the question of whether the Department should grant 
DCPS's request to enter into a Compliance Agreement. The Department has 
reviewed this testimony, the proposed Compliance Agreement, and other 
relevant materials.\1\ On the basis of this evidence, the Department 
concludes, and hereby issues written findings in accordance with 20 
U.S.C. Sec. 1234f(b)(2), that DCPS has met its burden of establishing 
that:
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    \1\ A copy of the Compliance Agreement, which was prepared by 
DCPS in conjunction with representatives of this Department, is 
appended to this decision as Attachment A.
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    (1) DCPS compliance with the Part B requirements to ensure that a 
free appropriate public education is made available to all eligible 
children and youth with disabilities in the District of Columbia is not 
feasible until a future date; and
    (2) DCPS will be able to carry out the terms and conditions of the 
Compliance Agreement and come into full compliance with the Part B 
requirements within three years of the date of this decision.
    During the effective period of the Compliance Agreement, which ends 
three years from the date of this decision, DCPS 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 DCPS 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 enforcement action authorized by 20 U.S.C. Sec. 1234c. At 
the end of the effective period of the Compliance Agreement, DCPS must 
be in full compliance with Part B in order to maintain its eligibility 
to receive funds under that program. 20 U.S.C. Sec. 1234c.

II. Relevant Statutory and Regulatory Provisions

A. Part B of the Individuals With Disabilities Education Act

    Part B 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).2 Part B 
provides Federal financial assistance to those State educational 
agencies (SEAs) that demonstrate that they meet certain eligibility 
requirements, including having in effect a policy to ensure that ``a 
free appropriate public education [FAPE] is available to all children 
with disabilities residing in the State between the ages of three and 
twenty-one * * *'' 20 U.S.C. Sec. 1412(a)(1).3 FAPE is 
defined as special education and related services that:
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    \2\ Part B was recently amended by the Individuals with 
Disabilities Education Act Amendments of 1997. (IDEA-97) This 
decision and the attached agreement include citations to the current 
statute as amended and the regulations currently in effect. On 
October 22, 1997, the Department published proposed regulations to 
implement IDEA-97. When these regulations are published in final, 
the agreement will be amended to reflect any necessary changes to 
the regulatory citations.
    \3\ Part B defines ``child with a disability'' 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. Sec. 1401(3)(A). Under 
sections 301(a)(1) and (a)(2)(H) of the Department of Education 
Organization Act (DEOA), 20 U.S.C. Sec. 3441(a)(1) and (a)(2)(H), 
Congress transferred the administration of Part B from the 
Commissioner of Education to the Secretary of Education. Section 
2078 of the DEOA, 20 U.S.C. Sec. 3417, in turn delegates 
responsibility for Part B to the Assistant Secretary for Special 
Education and Rehabilitative Services.
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    (a) Have been provided at public expense, under public supervision 
and direction, and without charge,
    (b) Meet the standards of the State educational agency,
    (c) Include an appropriate preschool, elementary, or secondary 
school education in the State involved, and
    (d) Are provided in conformity with the individualized education 
program [IEP] required under section 614(d). [20 U.S.C. Sec. 1401(8)]
     A State also must ensure that the Part B requirements regarding 
evaluations, reevaluations, timeliness and implementation of due 
process hearing decisions, child find, and the provision of an 
education in the least restrictive environment are met. Part B requires 
DCPS to ensure that:

sall children with disabilities residing in the [District of 
Columbia] * * * 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,

[[Page 41372]]

located, and evaluated * * * [20 U.S.C. Sec. 1412(a)(3)(A)]

Moreover, a child with a disability cannot receive an initial special 
education placement until an evaluation has been performed in 
accordance with sections 614(a)(1), (b) and (c) of Part B.4 
All children with disabilities must be placed in the least restrictive 
environment appropriate to their individual needs, as required by 
section 612(a)(5)(A) of Part B and 34 CFR Secs. 300.550-300.556. After 
initial evaluation and placement, children with disabilities must be 
reevaluated at least every three years in accordance with sections 
614(a)(2), (b) and (c) of Part B.
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    \4\ The current standard for conducting initial evaluations 
within a reasonable period of time in DCPS was established by the 
Federal district court's decree in Mills v. Board of Education of 
the District of Columbia, 348 F. Supp. 866, 878-79 (D.DC 1972), 
which requires that a student who has been referred for a special 
education evaluation must be evaluated and placed within 50 days of 
referral. Under Part B at 20 U.S.C. Sec. 1412(a)(11), States are 
required to ensure compliance with State standards for the 
implementation of programs for children with disabilities.
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    As noted above, the provision of FAPE includes special education 
and related services. ``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. Sec. 1401(22)]

The IEP for each child with a disability must specify the related 
services which are to be provided. 34 CFR Sec. 300.346(a)(3). In order 
to meet its obligation to make FAPE available, DCPS must be able to 
identify, locate, and evaluate all children with disabilities who are 
in need of special education and related services, provide timely 
initial evaluations and reevaluations, place students in the least 
restrictive environment appropriate to their individual needs and 
provide the related services specified in each student's IEP.
    DCPS must also ensure that its due process system, which is a 
critical component of Part B designed to protect the rights of children 
and their parents, meets the requirements of Part B. A final decision 
must be issued no later than 45 days after receipt of a request for a 
due process hearing as required by 34 CFR Sec. 300.512. Independent 
hearing officer determinations must be implemented within the time 
frame prescribed by the hearing determination as required by sections 
615 (f) and (i) of Part B.

B. The General Education Provisions Act

    The General Education Provisions Act (GEPA) provides the Department 
with a number of options when it determines a recipient of Department 
funds is ``failing to comply substantially with any requirements of law 
applicable to such funds.'' 20 U.S.C. Sec. 1234c. In such cases, the 
Department is authorized to:
    (1) Withhold further payments under that program from the 
recipient,
    (2) Issue a complaint to compel compliance through a cease and 
desist order,
    (3) Enter into a compliance agreement with the recipient to bring 
it into compliance; and
    (4) Take any other action authorized by law. 20 U.S.C. Sec. 1234c.
    In addition, under section 616(a) of Part B, if a State fails to 
comply substantially with IDEA, the Department is authorized to 
withhold, in whole or in part, any further payments to the State under 
Part B or to refer the matter for appropriate enforcement action, which 
may include referral to the Department of Justice.
    Under section 457 of GEPA, 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. Sec. 1234f. 
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.'' Before entering into a Compliance Agreement with a 
recipient, 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. Sec. 1234f(b)(1). If, on 
the basis of all the available evidence, the Secretary determines that 
compliance until a future date is genuinely not feasible 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. Sec. 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, by 
which time the recipient must be in full compliance with all program 
requirements. 20 U.S.C. Sec. 1234f(c)(1). In addition, the Compliance 
Agreement must contain the terms and conditions with which the 
recipient must comply during the period that Agreement is in effect. 20 
U.S.C. Sec. 1234f(c)(2). 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 of the 
compliance actions described previously. 20 U.S.C. Sec. 1234f(d).

III. Analysis

A. Overview of Issues To Be Resolved in Determining Whether a 
Compliance Agreement Is Appropriate

    In deciding whether a Compliance Agreement between the Department 
and DCPS is appropriate, the Department must first determine whether 
compliance by DCPS with the Part B requirements concerning evaluations, 
reevaluations, related services, timeliness and implementation of due 
process decisions, child find and least restrictive environment is not 
feasible until a future date. 20 U.S.C. Sec. 1234f(b). The second issue 
that must be resolved is whether DCPS will be able, within a period of 
up to three years, to come into compliance with the Part B 
requirements. Moreover, not only must DCPS 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 DCPS 
would not be appropriate.

B. DCPS Has Failed To Comply Substantially With Part B

    OSEP has been working with DCPS over a number of years to address 
its serious and on-going failure to comply with the requirements of 
Part B. In a monitoring report issued on February 8, 1994, OSEP found 
that in several areas DCPS was not meeting its responsibility to ensure 
that its educational programs for children with disabilities were being

[[Page 41373]]

administered in a manner consistent with the requirements of Part B and 
its implementing regulations. OSEP found, among other things, that DCPS 
did not provide the related services specified on a student's IEP, 
place students in the least restrictive environment, conduct an 
evaluation every three years or issue due process decisions within the 
required 45 day timeline.
    From March 1 through 6, 1995, OSEP conducted a follow-up review to 
determine the extent to which DCPS was making progress towards 
implementing selected corrective actions specified in the 1994 
monitoring report. In a June 12, 1995 monitoring report, OSEP 
determined that significant problems remained with regard to least 
restrictive environment requirements and the provision of related 
services. OSEP also determined that DCPS continued to have significant 
problems with ensuring that students with disabilities are evaluated 
every three years. In response to this report, DCPS submitted a 
corrective action plan to ensure that these violations would be 
corrected.
    On February 4 and 5, 1997, in preparation for a monitoring visit 
scheduled for the spring of 1997, OSEP conducted public meetings at 
which parents, advocates, and representatives of professional groups 
provided testimony indicating that DCPS has failed to meet many of the 
requirements of Part B. Many people testified that DCPS was continuing 
to have compliance problems in the same areas that had been identified 
in the February 8, 1994 and June 12, 1995 monitoring reports. On 
February 10, 1997, OSEP met with General Becton and members of his 
staff to discuss OSEP's serious concerns with DCPS' ongoing 
noncompliance with IDEA. There was substantial agreement between DCPS 
and OSEP regarding DCPS' current noncompliance with Part B and the need 
to develop a comprehensive corrective action plan. The Department 
agreed to consider the possibility of entering into a compliance 
agreement. In a March 27, 1997 letter, General Becton informed OSEP 
that he believed that developing a compliance agreement would be an 
appropriate course of action which is in the best interest of the 
children of the District of Columbia.

C. The Noncompliance of DCPS With the Part B Requirements Identified in 
the Compliance Agreement Cannot Be Corrected Immediately.

    On June 18, 1997, pursuant to 20 U.S.C. 1234f(b)(1), the Department 
conducted a public hearing to determine whether a compliance agreement 
with DCPS is appropriate to address system-wide problems in the 
provision of special education for students with disabilities residing 
in the District of Columbia. As at the February hearings, parents, 
advocates, service providers, and other interested parties testified 
that DCPS was continuing to have compliance problems in the same areas 
that had been identified in previous reports. Many commenters supported 
the Department entering into a compliance agreement with DCPS but urged 
the Department to make the agreement as specific as possible.
    On January 26, 1998, DCPS reported that on January 5, 1998, 2,331 
students who had been referred for a special education evaluation 
awaited completion of an initial assessment and placement for longer 
than 50 days. As of January 5, 1998, of the 655 hearing requests that 
had been received, a final decision had not been issued within 45 days 
of the request in 482 cases as required by 34 CFR Sec. 300.512. As of 
January 5, 1998, 332 final decisions had not been fully implemented 
within the time frame prescribed by the hearing determination. These 
numbers are evidence of the magnitude of the problems faced by DCPS.
    Through the monitoring process and the public hearing, the 
Department has learned that DCPS's difficulties in complying with the 
requirements of Part B are the outgrowth of a number of complex and 
long-term causes including an inadequate management system for its 
special education program. At the public hearing, DCPS itself 
identified inadequate management and several other reasons why 
compliance cannot be achieved until a future date. These reasons 
include poor information management systems, lack of staff training, 
inappropriate staff allocation and lack of appropriate programs.
    All parties who testified at the public hearing, including DCPS, 
agreed that DCPS must implement an effective system of managing its 
special education program. The sheer magnitude of the problem faced by 
DCPS leads the Department to conclude that DCPS will not be able to 
come into compliance with the Part B requirements until a future date. 
This conclusion is consistent with the testimony of all of the 
witnesses at the public hearing.

D. DCPS 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 Chief Executive Officer, General Julius W. Becton, Jr., pledged 
to rebuild the special education division of DCPS. Already, specific 
steps have been taken, or are in the process of being planned, to 
realize this goal. DCPS has developed a strategic plan designed to 
reorganize its special education division and address the Part B 
requirements for which DCPS is currently not in compliance. DCPS has 
budgeted a total increase in resources dedicated to special education 
of $20 million for the 1998-99 school year.
    DCPS's special education division is currently undergoing a 
reorganization and is planning to hire a team of three specialists to 
coordinate special education. In the fall of 1997, DCPS completed new 
position descriptions with performance expectations and standards for 
all staff designed to improve accountability and assure quality. In 
addition, DCPS has reallocated its staff to ensure more effective use 
of its current personnel. A Child Find Liaison has been assigned and a 
child find hotline has been established.
    DCPS issued a request for proposals (RFP) in June 1997 for special 
education assessment services. DCPS is in the process of recruiting 
additional related service providers. DCPS has allocated additional 
resources to ensure that due process hearings can be conducted within 
the 45 day timeline. DCPS is planning to hire five additional 
administrative law judges to conduct due process hearings and four 
additional lawyers to represent DCPS at hearings. A mediation process 
to meet the requirement of section 615(e) of Part B is being developed.
    DCPS is conducting additional staff development training so that 
they can serve students more inclusively at local schools. DCPS has 
expanded its early childhood program to serve an additional 40 
preschool children and under the terms of the agreement must continue 
to expand its preschool programs. New programs have been developed for 
high school age students with learning disabilities and elementary 
school aged students who have emotional disturbance and DCPS' strategic 
plan includes continuing to build up its program capabilities. The 
steps DCPS has already taken, its commitment of resources, and the 
plans it has developed for further action, demonstrate that DCPS has 
the capacity to meet the terms and conditions of the Compliance 
Agreement.
    Finally, the Compliance Agreement sets out a very specific 
schedule, that DCPS must meet during the next three years, for 
attaining compliance with the many requirements of Part B. Therefore, 
DCPS is committed not only to being in

[[Page 41374]]

full compliance with Part B within three years, but to meeting a 
stringent, but reasonable, schedule for reducing the number of children 
with disabilities in the District who have not received the 
evaluations, reevaluations, and related services to which they are 
entitled and for reducing the number of hearing decisions that have not 
been issued within the 45 day timeline and the number of decisions that 
have not been implemented. The Compliance Agreement also sets out data 
collection and reporting procedures that DCPS must follow. These 
provisions will allow the Department to ascertain promptly whether or 
not DCPS is meeting each of its commitments under the Compliance 
Agreement. The Compliance Agreement, because of the obligations it 
imposes on DCPS, will provide the Department with the information and 
authority it needs to protect the Part B rights of the District of 
Columbia's children.
    The task of ensuring that all children with disabilities receive 
the rights and protections to which they are entitled under IDEA is 
difficult given the long-standing problems in DCPS' special education 
program. However, the Department has determined that with the 
commitment of the new leadership to meet the terms and conditions of 
this agreement, the process of improving special education services for 
all students with disabilities residing in the District of Columbia can 
begin immediately. For these reasons, the Department concludes that 
DCPS can meet all the terms and conditions of the Compliance Agreement 
and come into full compliance with Part B within three years.

IV. Conclusion

    For the foregoing reasons, the Department finds the following: (1) 
That full compliance by DCPS with the requirements of Part B is not 
feasible until a future date, and (2) that DCPS 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 
DCPS. Under the terms of 20 U.S.C. Sec. 1234f, that Compliance 
Agreement becomes effective on the date of this decision.

    Dated: March 10, 1998.
Richard W. Riley,
Secretary of Education.

Text of the Binding Provisions of the Compliance Agreement--
Compliance Agreement Under Part B of the Individuals With 
Disabilities Education Act Between the United States Department of 
Education and the District of Columbia Public Schools

Introduction

    The Office of Special Education Programs of the United States 
Department of Education (OSEP) conducted public hearings during the 
week of February 3, 1997 regarding the District of Columbia Public 
Schools (DCPS') implementation of Part B of the Individuals with 
Disabilities Education Act (Part B of IDEA).1 Those 
hearings, and input from representatives of DCPS, lead OSEP to raise 
the possibility of the development of a compliance agreement to bring 
DCPS into full compliance with applicable portions of the law as soon 
as feasible. In a letter dated March 27, 1997, General Julius Becton, 
Jr., DCPS' Chief Executive Officer, confirmed DCPS' interest in 
developing a compliance agreement, believing that the execution of such 
an agreement would be in the best interests of the children of the 
District of Columbia.
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    \1\ This agreement references the regulations in effect on the 
date that this agreement took effect. On October 22, 1997, the 
Department published proposed regulations to implement the 
Individuals with Disabilities Education Act Amendments of 1997. When 
these regulations are published in final, the agreement will be 
amended to reflect any necessary changes to the regulatory 
citations. These amendments will not, however, alter the effective 
period of this agreement.
---------------------------------------------------------------------------

    Pursuant to this Compliance Agreement under 20 U.S.C. Sec. 1234f, 
DCPS must be in full compliance with the requirements of Part B no 
later than three years from the date of the Department's written 
findings, a copy of which is attached to, and incorporated by reference 
into, this Agreement. Specifically, DCPS must ensure and document that 
no later than three years after the effective date of this Agreement, 
the following compliance goals are achieved:
    1. An initial evaluation that meets the requirements of sections 
614(a)(1), (b), and (c) of Part B of IDEA is completed for all children 
with disabilities, and an appropriate placement is made within the 
maximum number of days established by DCPS' policy, and a reevaluation 
that meets the requirements of sections 614(a)(2), (b), and (c) of Part 
B of IDEA, is completed for all children with disabilities no later 
than 36 months after the date on which the most recent previous 
evaluation or reevaluation was completed;
    2. All children with disabilities receive the related services 
specified in their individualized education program as required by 
section 602(8) of Part B of IDEA and 34 CFR Sec. 300.350;
    3. A final decision is issued not later than 45 calendar days after 
the receipt of a request for a due process hearing as required by 34 
CFR 300.512, except in cases where the requester voluntarily withdraws 
the request (e.g., in favor of mediation, because the issues motivating 
the request were addressed, and/or a settlement has been reached);
    4. Independent hearing officer determinations are implemented 
within the time-frame prescribed by the hearing determination as 
required by sections 615(f) and (i) of Part B of IDEA;
    5. A Child-Find system is established which identifies and locates 
all children with disabilities, including those transitioning from Part 
H programs, who are in need of special education and related services 
as required by section 612(a)(3) of Part B of IDEA;
    6. All children with disabilities are placed in the least 
restrictive environment appropriate to their individual needs, as 
required by section 612(a)(5)(A) of Part B of IDEA and 34 CFR 300.550-
300.556;
    7. State complaint procedures which meet the requirements of 34 CFR 
300.660-300.662 are implemented;
    8. Beginning no later than age 16, and at a younger age, if 
determined appropriate, a statement of needed transition services is 
included in each student's individualized education plan (IEP) as 
required by 34 CFR 300.346(b) and if a purpose of the IEP meeting is 
consideration of transition services, that all required participants 
have been invited and participate as required by 34 CFR 300.344(c) and 
that a notice containing all required content is issued as required by 
34 CFR 300.345(b)(2);
    9. A State Advisory Panel is established which meets the 
requirements of section 612(a)(21) of Part B of IDEA;

[[Page 41375]]

    10. Procedures that meet the requirements of section 615(b)(2) of 
Part B of IDEA are implemented to protect the rights of the child 
whenever the parents of the child are not known, the agency cannot, 
after reasonable efforts, locate the parents, or the child is a ward of 
the State; and
    11. Sufficient numbers of personnel are available to meet the needs 
of students with disabilities who are limited English proficient.
    During the period that this Compliance Agreement is in effect, DCPS 
is eligible to receive Part B funds if it complies with the terms and 
conditions of this Agreement, including the provisions of Part B of 
IDEA, as amended by the IDEA Amendments of 1997 (IDEA-97) and other 
applicable Federal statutory and regulatory requirements.
    Specifically, the Compliance Agreement sets forth commitments and 
timetables for DCPS to meet in coming into compliance with its Part B 
obligations. In addition, DCPS is required to submit documentation 
concerning its compliance with these goals and timetables. Any failure 
by DCPS to comply with the goals, timetables, documentation, or other 
provisions of the Compliance Agreement, including the reporting 
requirements, will authorize the Department to consider the agreement 
no longer in effect. Under such circumstances, the Department may take 
any action authorized by 20 U.S.C. Sec. 1234c, including the 
withholding of Part B funds from DCPS. This Agreement will take effect 
on the day the Department issues its written findings of fact, pursuant 
to the requirements of 20 U.S.C. Sec. 1234f, and will expire three 
years from that date.
    The following pages of this compliance agreement address topic 
areas of DCPS' non-compliance, and include goals, verifiable outcomes, 
schedules for levels of compliance over the three year agreement, and 
DCPS' ``Action Plan'' for achieving compliance. Since several of the 
compliance goal areas are inter-related, some ``Action Plan'' items are 
duplicated between topic areas. Please note that ``Action Plan'' items 
for each goal are provided by DCPS for informational purposes only, to 
demonstrate DCPS' commitment to coming into full compliance with IDEA. 
DCPS and the Department agree that ``Action Plan'' items (activities, 
time line/status, responsibility, milestone/verification, and special 
resources) shall not be construed to bind DCPS legally or otherwise. 
DCPS, however, is bound to comply with all other aspects of this 
Agreement.

Topic 1.0: Initial Evaluations and Re-evaluations

    Current Status: DCPS' current policy, as set forth in the Mill's 
decree, is that a student who has been referred for a special education 
evaluation must be evaluated and placed within 50 days of the referral. 
On January 5, 1998, 2,331 students who had been referred for a special 
education evaluation awaited completion of an initial assessment and 
placement for longer than 50 days. Additionally, on March 31, 1998, 
2,529 (data received March 31, 1998) students with disabilities will 
not have been re-evaluated for more than 36 months following their 
initial or most recent previous re-evaluation. Goals are:
Goal 1.0
    (a) To ensure that an initial evaluation that meets the 
requirements of sections 614(a)(1), (b) and (c) of Part B of IDEA is 
completed for all children with disabilities and an appropriate 
placement is made within 50 days after the child is referred 
2; and,
---------------------------------------------------------------------------

    \2\ DCPS and the Department agree that if the time line for 
initial evaluation and placement is modified by the Court, the 
Compliance Agreement will be amended to incorporate the revised time 
line.
---------------------------------------------------------------------------

    (b) To ensure that a re-evaluation that meets the requirements of 
sections 614(a)(2), (b) and (c) of Part B of IDEA is completed for all 
children with disabilities no later than 36 months after the date on 
which the most recent previous evaluation or re-evaluation was 
completed.
    DCPS will gather baseline data regarding the number of students 
(yy) for the re-evaluation goal, and provide that data to the 
Department by March 31, 1998 (data received March 31, 1998 and included 
in Table B, below).
Overall Measurable Outcomes and Verification for Goal 1.0 (a): Initial 
Evaluations
    (a) Every week, DCPS will prepare an internal report which includes 
the name of each child referred for initial evaluation, and the number 
of calendar days since the referral, the status of that referral 
(complete or incomplete), and the component assessments remaining if 
the evaluation is incomplete and/or placement has not been made.
    (b) DCPS shall make these internal reports available to OSEP if 
requested by that office.
    (c) On a periodic basis, beginning with the period ending June 30, 
1998, DCPS will submit to the Department--at the times and in the 
manner specified in Table A--a summary of the internal reports for the 
relevant reporting period. The summary will include:
     The number of children referred for initial evaluation, as 
of the start of the reporting period, whose initial evaluation and 
placement have not been completed within the required time period;
     The number of children referred for initial evaluations 
during the reporting period;
     The number of children for whom an initial evaluation and 
placement was completed during the reporting period;
     The number of referred children who did not receive an 
initial evaluation and placement within the required time period at the 
conclusion of the reporting period.
    (d) Table A sets out, on a periodic basis, DCPS' commitment for 
incremental reduction to zero of the number of children waiting for 
initial evaluations and placements for longer than 50 days after 
referral. For children referred prior to January 5, 1998, this number 
will be reduced to zero by March 31, 1999. For children referred on or 
after January 5, 1998, this number will be reduced to zero by March 31, 
2000. DCPS is obligated not only to meeting these final commitments to 
reduce the number of children awaiting timely initial evaluations and 
placements to zero, but also to meeting all of the periodic commitments 
for reducing that number set out in Table A.
    (e) DCPS shall provide OSEP, by April 30, 1998, its policies and 
procedures for ensuring that evaluations and reevaluations are 
conducted in conformity with the evaluation procedures required in 
section 614(b) and (c) of Part B of IDEA.

[[Page 41376]]



 Table A.--DCPS Periodic Reports to the Department: Required Levels and Timelines for Achieving and Documenting 
                      Progress Toward Full Compliance (Initial Evaluations and Placements)                      
----------------------------------------------------------------------------------------------------------------
        Number of children awaiting completion of initial evaluation and placements for more than 50 days       
-----------------------------------------------------------------------------------------------------------------
                                 Referrals                                                          Date report 
  Date of reporting period     prior to 1/5/              Referrals 1/5/98 and after               submitted to 
                                    98                                                              department  
----------------------------------------------------------------------------------------------------------------
1/5 to 6/30/98..............           1,748  85% of referrals..................................         7/15/98
7/1 to 9/30/98..............             932  75% of referrals..................................        10/15/98
10/1 to 12/31/98............             233  60% of referrals..................................         1/15/98
1/1 to 3/31/99..............               0  45% of referrals..................................         4/15/99
4/1 to 6/30/99..............               0  30% of referrals..................................         7/15/99
7/1 to 9/30/99..............               0  15% of referrals..................................        10/15/99
10/1 to 12/31/99............               0  5% of referrals...................................         1/15/00
1/1 to 3/31/00..............               0  0.................................................         4/15/00
4/1 to 6/30/00..............               0  0.................................................         7/15/00
7/1 to 9/30/00..............               0  0.................................................        10/15/00
10/1 to 12/31/00............               0  0.................................................         1/15/01
1/1 to 3/31/01..............               0  0.................................................         4/15/01
----------------------------------------------------------------------------------------------------------------

Overall Measurable Outcomes and Verification for Goal 1.0 (b) 
Reevaluations
    (a) Within the first week of each month, DCPS will prepare an 
internal report of the name of each child for whom an initial 
evaluation, or the most recent re-evaluation, was completed. Children 
for whom the initial evaluation or re-evaluation was completed more 
than 36 months prior will be highlighted in the report.
    (b) Appended to the above report, DCPS will note which children 
from the previous month's report have been re-evaluated during that 
month, as well as those cases which are still pending.
    (c) DCPS shall make these internal reports available to OSEP if 
requested by that office.
    (d) Within fifteen (15) calendar days following the end of each 
reporting period commencing with the reporting period ending June 30, 
1998, DCPS will submit to the Department a summary of the monthly 
reports for the period, including:
     The number of children who have not received re-
evaluations within 36 months at the start of the reporting period;
     The number of children who, during the reporting period, 
have been identified as not receiving re-evaluations within 36 months;
     The number of students for whom a re-evaluation was 
completed during the reporting period;
     The number of students whose re-evaluation is still 
pending for more than 36 months at the end of the reporting period.
    (e) Table B sets out, on a periodic basis, DCPS'' commitment for 
incremental reduction to zero of the number of children who have not 
received timely re-evaluations. For children whose re-evaluations was 
due on or before January 5, 1998, this number will be reduced to zero 
by March 31, 1999. For children whose re-evaluations will be due after 
January 5, 1998, this number will be reduced to zero by March 31, 2000. 
DCPS is obligated not only to meeting these final commitments to reduce 
the number of children awaiting timely re-evaluations to zero, but also 
to meeting all of the periodic commitments for reducing that number set 
out in Table B.

 Table B.--DCPS Periodic Reports to the Department: Required Levels and Timelines for Achieving and Documenting 
                                Progress Toward Full Compliance (Re-Evaluations)                                
----------------------------------------------------------------------------------------------------------------
       Students awaiting re-evaluation more than 36 months after initial evaluation or last re-evaluation       
-----------------------------------------------------------------------------------------------------------------
                                                                                                    Date report 
      Date of reporting period         Re-evaluation due 1/5/98 or  Re-evaluation due after 1/5/   submitted to 
                                                 before                          98                 department  
----------------------------------------------------------------------------------------------------------------
1/5 to 6/30/98......................  1,897 (data rec'd 3/31/98)..  85% of Re-Evaluations due...         7/15/98
7/1 to 9/30/98......................  1,012 (data rec'd 3/31/98)..  75% of Re-Evaluations due...        10/15/98
10/1 to 12/31/98....................  253 (data rec'd 3/31/98)....  60% of Re-Evaluations due...         1/15/99
1/1 to 3/31/99......................  0...........................  45% of Re-Evaluations due...         4/15/99
4/1 to 6/30/99......................  0...........................  30% of Re-Evaluations due...         7/15/99
7/1 to 9/30/99......................  0...........................  15% of Re-Evaluations due...        10/15/99
10/1 to 12/31/99....................  0...........................  5% of Re-Evaluations due....         1/15/00
1/1 to 3/31/00......................  0...........................  0...........................         4/15/00
4/1 to 6/30/00......................  0...........................  0...........................         7/15/00
7/1 to 9/30/00......................  0...........................  0...........................        10/15/00
10/1 to 12/31/00....................  0...........................  0...........................         1/15/01
1/1 to 3/31/01......................  0...........................  0...........................         4/15/01
----------------------------------------------------------------------------------------------------------------

Topic 2.0: Related Services

    Current Status: As of January 5, 1998, DCPS has not provided 
related service in accordance with students' IEP to 1,055 (data 
received March 31,1998) students.
    DCPS currently lacks a special education student information 
system, and consequently can not provide adequate baseline data 
regarding the total number of students (zz) who do not receive all of 
the related services called for within their IEPs. DCPS will capture

[[Page 41377]]

this baseline data, and provide it to the Department of Education no 
later than March 31, 1998, using the following methods.
     DCPS' related service (``Intervention'') staff members 
will, with assistance from school principals, identify the list of all 
students entitled to receive a related service, and record all of those 
students' names in a format which the Special Education Division 
provides (the format is included as Attachment P to this Compliance 
Agreement).
     Twice each month, intervention staff will record, on the 
provided format, the names of those students to whom they have provided 
service/therapy, the names of students who missed service/therapy due 
to absences, and the names of students (if any) who could not be 
scheduled to receive related service/therapy due to inadequate 
schedule/time.
     Each related service (``Intervention'') staff member will 
total the number of such students who do not receive service/therapy 
due to inadequate schedule/time, and report the result to their Special 
Education Division supervisor. Each supervisor will summarize the 
reports for all intervention staff, and the Deputy Director for Service 
Delivery will summarize the data for DCPS as a whole.
     When a new student is placed in a school's special 
education program, that student shall be added to the list of students 
entitled to receive related services at that school, consistent with 
the services called for in the student's IEP. Similarly, when a student 
transfers, graduates or withdraws, the student's name shall be deleted 
from the list. Such additions and deletions shall be summarized in each 
report by each Intervention staff member.
    The number of students who could not be scheduled to receive 
related service/therapy due to inadequate related service provider 
schedule/time shall be reported initially to the Department of 
Education, and shall form the source of data from which will be used 
for the reports described below. An initial report of all students who 
are not receiving all related services specified within their IEPs will 
be made prior to March 31, 1998, and those students will make up the 
initial count of students shown as ``zz'' in Table C below.
Goal 2.0
    To ensure that all children with disabilities receive the related 
services specified in their individual education program as required by 
section 602(8) of Part B of IDEA and 34 CFR 300.350.
Overall Measurable Outcomes and Verification for Goal 2.0 (Related 
Services)
    (a) Within the first week of each month, DCPS will prepare an 
internal report for each type of related service with the following 
content:
    i. Children, by name, whose IEPs call for a related service, but 
who are not yet assigned to the schedule of a specific DCPS provider of 
that service (a child whose IEP calls for two different related 
services, but who is not receiving either service, will appear 
separately on the reports for each of those related services). These 
children will be listed in order of the date on which their original or 
updated IEP calling for the service was signed.
    ii. Children, by name, who, for whatever reason, have been removed 
from the schedule of a DCPS related service provider (for example, 
because of the resignation of the service provider, or because of the 
transfer of the student away from the school where that provider works, 
etc.), and who have not immediately been reassigned to the schedule of 
another service provider.
    iii. Children, by name, who within the previous month have been 
assigned to the schedule of a specific DCPS service provider (and who 
consequently have been removed from the above listing of unassigned 
children).
    iv. DCPS related service providers who are scheduled to serve 
children for fewer hours per week than is provided for by DCPS policy 
for that service, and who consequently may be available to serve 
additional children.
    (b) DCPS shall make these internal reports available to OSEP if 
requested by that office.
    (c) Within fifteen calendar days following the end of each 
reporting period, DCPS will provide to the Department a report with the 
following content:
    i. The number of children who are not receiving all the related 
services specified in their IEP as of the start of the reporting 
period;
    ii. The number of children identified during the reporting period 
as not receiving all the related services specified in their IEPs;
    iii. The number of children that, during the reporting period, 
began receiving all the related services specified in their IEPs; and
    iv. The number of children not receiving all related services 
specified in their IEPs at the end of the reporting period.
    (d) Table C sets out, on a periodic basis, DCPS'' commitment for 
incremental reduction to zero of the number of children not receiving 
all the related services specified in their IEPs. For the number of 
children who were determined eligible for special education prior to 
January 5, 1998, but not receiving all of the related services 
specified within their IEPs, this number will be reduced to zero by 
December 31, 1999. For the number of students who were determined 
eligible for special education on or after January 5, 1998, but not 
receiving all of the related services specified within their IEPs, this 
number will be reduced to zero by March 31, 2000. DCPS is obligated not 
only to meeting this final commitment to reduce the number of children 
not receiving required related services to zero, but also to meeting 
all of the periodic commitments for reducing the number set out in 
Table C.
    (e) By April 30, 1998, DCPS must establish, and submit to OSEP for 
approval, a method to verify that those children who have been assigned 
to the schedule of a specific DCPS service provider are in fact 
receiving the required services.

 Table C.--DCPS Periodic Reports to the Department Required Levels and Time Lines for Achieving and Documenting 
                               Progress Toward Full Compliance (Related Services)                               
----------------------------------------------------------------------------------------------------------------
                                         Number of children not        Number of children not                   
                                       receiving related services    receiving related services     Date report 
      Date of reporting period          provided for in their IEP     provided for in their IEP    submitted to 
                                       (students eligible prior to   program (students eligible     department  
                                                 1/5/98)                 on or after 1/5/98)                    
----------------------------------------------------------------------------------------------------------------
1/5 to 6/30/98......................  950 (data rec'd 3/31/98)....  95% of newly eligible                7/15/98
                                                                     students.                                  
7/1 to 9/30/98......................  791 (data rec'd 3/31/98)....  85% of newly eligible               10/15/98
                                                                     students.                                  
10/1 to 12/31/98....................  580 (data rec'd 3/31/98)....  70% of newly eligible                1/15/99
                                                                     students.                                  
1/1 to 3/31/99......................  369 (data rec'd 3/31/98)....  55% of newly eligible                4/15/99
                                                                     students.                                  
4/1 to 6/30/99......................  211 (data rec'd 3/31/98)....  40% of newly eligible                7/15/99
                                                                     students.                                  

[[Page 41378]]

                                                                                                                
7/1 to 9/30/99......................  106 (data rec'd 3/31/98)....  25% of newly eligible               10/15/99
                                                                     students.                                  
10/1 to 12/31/99....................  0...........................  10% of newly eligible                1/15/00
                                                                     students.                                  
1/1 to 3/31/00......................  0...........................  0...........................         4/15/00
4/1 to 6/30/00......................  0...........................  0...........................         7/15/00
7/1 to 9/30/00......................  0...........................  0...........................        10/15/00
10/1 to 12/31/00....................  0...........................  0...........................         1/15/01
1/1 to 3/31/01......................  0...........................  0...........................         4/15/01
----------------------------------------------------------------------------------------------------------------

Topic 3.0: Due Process Hearing Timeliness

    Current Status: For a significant portion of due process hearing 
requests received by DCPS on behalf of students with disabilities, a 
final decision is not issued within 45 days after receipt of the 
request. As of January 5, 1998, of the 655 hearing requests that had 
been received, a final decision had not been issued within 45 days of 
the request in 482 cases.
Goal 3.0
    To ensure that a final decision is issued, not later than 45 
calendar days after the receipt of a request for a due process hearing 
as required by 34 CFR 300.512, except in cases where the requester 
voluntarily withdraws the request (including, but not limited to, 
instances of withdrawal in favor of mediation, because the issues 
motivating the request were addressed, and/or where a settlement has 
been reached) and/or where a hearing officer grants a request for an 
extension by a party.
Overall Measurable Outcomes and Verifications for Goal 3.0
    (a) Within the first week of each month, DCPS will prepare an 
internal report with the following content:
    i. Name of each child for whom a due process hearing has been 
requested, and the date that the request was received in writing.
    ii. Name of each child for whom a due process hearing was held and 
a final decision was issued, and the date of the final decision.
    iii. Name of each child for whom a request for a due process 
hearing was withdrawn, the date of the withdrawal, and a brief note as 
to disposition.
    (b) DCPS shall make these internal reports available to OSEP if 
requested by that office.
    (c) Within fifteen calendar days following the end of each 
reporting period, DCPS will prepare and submit a report to the 
Department which includes:
    i. The number of pending hearing requests, as of the start of the 
reporting period, for which a final decision has not been issued within 
45 days of the request;
    ii. The number of pending hearing requests which, during the course 
of the reporting period, are added to the list of hearing requests for 
which a final decision has not been issued within 45 days of the 
request;
    iii. The number of final decisions issued during the reporting 
period for hearing requests that have been pending for more than 45 
days;
    iv. The number of pending hearings requests, at the conclusion of 
the reporting period, for which a final decision has not been issued 
within 45 days of the request.
    (d) Table D sets out, on a periodic basis, DCPS' commitment for 
incremental reduction to zero of the number of due process hearing 
requests which have been pending for more than 45 days, which have not 
been withdrawn, and for which a final decision has not been issued. 
DCPS is committed to reducing this number to zero by December 31, 1998. 
DCPS is not only committed to meeting this final commitment, but also 
to meeting all of the periodic commitments for reducing that number set 
out in Table D.
    (e) DCPS must submit to the Department, by March 31, 1998, the 
mediation procedures that it has developed under Section VII.F of its 
Strategic Plan to meet the requirements of section 615(e) of Part B of 
IDEA.

 Table D.--DCPS Periodic Reports to the Department: Required Levels and 
Time Lines for Achieving and Documenting Progress Toward Full Compliance
                    (Due Process Hearing Timeliness)                    
------------------------------------------------------------------------
                                             Number of                  
                                              hearing                   
                                          requests which                
                                             have been                  
                                          pending for 45                
                                           days or more,    Date report 
        Date of reporting period           have not been   submitted to 
                                          withdrawn, and    department  
                                            for which a                 
                                          final decision                
                                           has not been                 
                                              issued                    
------------------------------------------------------------------------
1/5 to 6/30/98..........................             361         7/15/98
7/1 to 9/30/98..........................             217        10/15/98
10/1 to 12/31/98........................               0         1/15/99
1/1 to 3/31/99..........................               0         4/15/99
4/1 to 6/30/99..........................               0         7/15/99
7/1 to 9/30/99..........................               0        10/15/99

[[Page 41379]]

                                                                        
10/1 to 12/31/99........................               0         1/15/00
1/1 to 3/31/00..........................               0         4/15/00
4/1 to 6/30/00..........................               0         7/15/00
7/1 to 9/30/00..........................               0        10/15/00
10/1 to 12/31/00........................               0         1/15/01
1/1 to 3/31/01..........................               0         4/15/01
------------------------------------------------------------------------

Objectives for Goal 3.0: Due Process Hearing Time Line
    3.1  Reduce the need for hearings by developing new programs, 
improving evaluations and improving related service delivery.
    3.2  Reduce demand for hearing requests by establishing a new 
mediation process.
    3.3  Increase accountability for hearing time lines by 
computerizing records and providing ongoing information to DCPS'' Legal 
and Special Education Division.

Topic 4.0: Hearing Determination Implementation

    Current Status: As of January 5, 1998, 332 student hearing 
determinations remained outstanding without having been fully 
implemented within the time frame set out by the hearing determination.
Goal 4.0
    To ensure that independent hearing officer determinations are 
implemented within the time-frame prescribed by the hearing 
determination, or the different time-frame agreed to in writing by the 
parent or guardian and submitted to the hearing officer as required by 
sections 615 (f) and (i) of Part B of IDEA.
Overall Measurable Outcomes and Verification for Goal 4.0
    (a) Within the first week of each month, DCPS will prepare an 
internal report:
    i. Date each due process hearing decision was filed, and the case 
number.
    ii. Type of hearing (e.g., denial, appropriateness, etc.).
    iii. Actions required and Time lines set out by the determination.
    iv. Date each action was completed, or a notation that the action 
remains incompleted. Actions which remain uncompleted beyond the date 
required within the order will be highlighted within the report.
    v. Date the hearing order was fully implemented (i.e., all actions 
completed). Note that all hearing cases will continue to be reported 
until it has been reported that the hearing order was fully 
implemented.
    vi. The number of cases in which a different time-frame is agreed 
to in writing by the parent or guardian and submitted to the hearing 
officer and DCPS'' basis for requesting a different time-frame.
    (b) DCPS shall make these internal reports available to OSEP if 
requested by that office.
    (c) Within fifteen calendar days following the end of each 
reporting period, DCPS will prepare and submit a report to the 
Department that includes:
    i. The number of hearing officer determinations, as of the start of 
the reporting period, that have not been fully implemented;
    ii. The number of hearing officer determinations which, during the 
course of the reporting period, are identified as not having been fully 
implemented;
    iii. The number of hearing officer determinations which, during the 
course of the reporting period, have been fully implemented;
    iv. The number of hearing officer determinations which, as of the 
conclusion of the reporting period, have not been fully implemented.
    (d) Table E sets out, on a periodic basis, DCPS'' commitment for 
incremental reduction to zero of the number of hearing officer 
determinations that have not been fully implemented consistent with the 
hearing decision. DCPS is committed to reducing this number to zero by 
December 31, 1998. DCPS is obligated not only to meeting this final 
commitment, but also to meeting all of the periodic commitments for 
reducing the numbers set out in Table E.

 Table E.--DCPS Periodic Reports to the Department: Required Levels and 
Time Lines for Achieving and Documenting Progress Toward Full Compliance
                 (Hearing Determination Implementation)                 
------------------------------------------------------------------------
                                             Number of                  
                                              hearing       Date report 
                                              officer         period    
            Date of reporting             determinations   submitted to 
                                             not fully      department  
                                            implemented                 
------------------------------------------------------------------------
1/5 to 6/30/98..........................             266         7/15/98
7/1 to 9/30/98..........................             199        10/15/98
10/1 to 12/31/98........................               0         1/15/99
1/1 to 3/31/99..........................               0         4/15/99
4/1 to 6/30/99..........................               0         7/15/99

[[Page 41380]]

                                                                        
7/1 to 9/30/99..........................               0        10/15/99
10/1 to 12/31/99........................               0         1/15/00
1/1 to 3/31/00..........................               0         4/15/00
4/1 to 6/30/00..........................               0         7/15/00
7/1 to 9/30/00..........................               0        10/15/00
10/1 to 12/31/00........................               0         1/15/01
1/1 to 3/31/01..........................               0         4/15/01
------------------------------------------------------------------------

Objectives for Goal 4.0: Hearing Order Determination Implementation
    4.1  Reduce the need for hearings (and thus the need for 
implementing hearing determinations) by developing new programs and 
initiatives and by implementing a mediation process.
    4.2  Improve implementation of assessment-related hearing order 
determinations (HODs) by prioritizing evaluations, reorganizing staff 
and supervision, and establishing a central assessment scheduling/
tracking method.
    4.3  Increase accountability for implementing order determinations 
by computerizing tracking and by summarizing status in a monthly 
report.

Topic 5.0: Child Find

    Current Status: DCPS is not complying with its obligation to 
identify and locate all children with disabilities residing in the 
District of Columbia, including children with disabilities attending 
private schools, regardless of severity of their disabilities, who are 
in need of special education and related services.
Goal 5.0
    To establish a Child-Find system which successfully identifies and 
locates all children with disabilities, including those transitioning 
from Part H programs, who are in need of special education and related 
services as required by section 612(a)(3) of Part B of IDEA.
Overall Measurable Outcomes and Verification for Goal 5.0: Child Find
    (a) Within fifteen calendar days following the end of each 
reporting period as set out in Table A above, DCPS will provide to the 
Department a report that includes:
    i. A listing of the inquires received through DCPS' Child Find 
hotline, and a summary of the other contacts made by Child Find staff, 
including the Child Find Liaison, and the screening aides; and
    ii. Data on the number of preschool students identified and served.
    (b) DCPS shall submit a report to OSEP every six months, from the 
effective date of this Compliance Agreement, on the activities it has 
carried out during the reporting period to implement the objectives of 
Goal 5.0. The report must include:
    (i) For the city wide screening event, identified in section III.C 
of the Strategic Plan, the number and location of screening sites, the 
kinds of screening tools that were used, and the number and ages of 
children screened; and
    (ii) For the training provided under section VII.G of the Strategic 
Plan, the dates and locations of the training sessions, the number of 
participants, and curriculum for the training.
    Please see Attachment Q for the District of Columbia's Policy and 
Procedure for transition form Part H to Part B programs, and form for 
recording child-find inquires.
Objective for Goal 5.0: Child Find
    5.1  Build DCPS' network and capability for identifying children 
who may need special education services by:
    a. Implementing the initiatives outlined in DCPS' State Plan for 
IDEA; and
    b. Assigning a Child Find Liaison, Early Childhood Coordinator, 
Transition Facilitator and screening aides.
    5.2  Increase school staff understanding of responsibilities and 
understanding of available resources for child find/outreach, screening 
and assessment procedures by developing and disseminating a concise 
flowchart and description.
    5.3  Increase sensitivity and familiarity of instructional support 
staff regarding students with disabilities and their instructional 
needs through training.
    5.4  Continue to expand early childhood program to serve additional 
preschool children.
    5.5  Increase awareness of parents of all children over the age of 
2.0 years who are enrolled in DHS Early Intervention Programs about 
their options and rights to receive services from DCPS under IDEA Part 
B.
    5.6  Develop policies and procedures to ensure a smooth transition 
for those individuals participating in the early intervention program 
under Part H of the IDEA who will participate in preschool programs, 
including a method for ensuring that when a child turns three, an IEP 
or IFSP has been developed and implemented by the child's third 
birthday as required by section 612(a)(9) of Part B of IDEA.

Topic 6.0: Restrictiveness of Placements

    Current Status: Currently, DCPS is not complying with its 
obligation to provide children with disabilities with the least 
restrictive placement appropriate to their individual needs. 
Specifically, Board of Education rules have been interpreted to require 
that the restrictiveness of a students' placement is determined by the 
number of hours of special education services required by the student. 
For example, a student who needs 32 hours of service each week is 
typically served only in a separate school.
Goal 6.0
    To ensure that children with disabilities are placed in the least 
restrictive environment appropriate to their individual needs as 
required by section 612(a)(5)(A) of Part B of IDEA and 34 CFR 300.550-
300.556 and that the restrictiveness of a student's placement (such as 
a self-contained class or a separate school placement) is not 
determined solely by the number of hours of service each week which is 
called for in the student's individualized education program.

[[Page 41381]]

Overall Measurable Outcomes and Verification for Goal 6.0: 
Restrictiveness of Placements
    (a) DCPS will provide the Department with a draft copy of its 
revised Board of Education Rules by no later than April 1, 1998 and its 
final rule by no later than June 30, 1998.
    (b) DCPS will, on October 1 of each year of this agreement, 
identify for the Department schools which have been identified as 
inclusion initiative schools, and those which serve as local school 
``satellites'' for program and services which had previously been 
offered in more restrictive, ``city-wide'' settings.
    (c) DCPS will, on June 1 of each year of this agreement, provide 
the Department with a list of placements that are available and that 
represent each type of placement on the continuum as required by 34 CFR 
300.551. DCPS must identify sufficient existing accessible locations to 
provide a continuum of appropriate placements for all children with 
disabilities. If DCPS is unable to identify sufficient existing 
accessible locations to provide a continuum, it must develop and submit 
a plan, on June 1, of each year of the agreement, to ensure accessible 
locations by September 1 for each type of placement on the continuum.
    (d) DCPS will submit data on the number of students in each type of 
placement on the continuum on November 20, 1998, November 20, 1999, and 
November 20, 2000.
    (e) DCPS will submit a report to OSEP every six months, from the 
effective date of this Compliance Agreement, on the activities it has 
carried out during the reporting period to implement Goal 6.0.
Objectives for 6.0: Restrictiveness of Placements
    6.1  Review and revise, if necessary, DCPS' continuum of services 
in accordance with applicable regulations
    6.2  Increase schools' abilities to serve students in less 
restrictive setting by:
    a. Implementing DCPS' inclusion initiative;
    b. Developing and expanding ``regional schools'' abilities to serve 
high school age students with learning disabilities and elementary age 
students with emotional disturbance; and
    c. Developing and expanding other programs to serve under-served 
students.
    6.3  Increase school system personnel sensitivity to children with 
disabilities by providing broad training/exposure for all school system 
staff.
    6.4  At IEP meetings, DCPS will review the appropriateness of each 
student's placement and staff will be trained on the proper methods for 
determination of the least restrictive environment consistent with OSEP 
memorandum 95-9.

Topic 7.0: State Complaint Procedures

    Current Status: DCPS is not implementing its written procedures for 
receiving and resolving any complaint that DCPS or a public agency is 
violating Part B or its regulations within 60 days.
Goal 7.0
    To implement state complaint procedures for receiving and resolving 
any complaint that DCPS or a public agency is violating Part B or its 
regulations as required by 34 CFR 300.660-300.662.
Overall Measurable Outcomes and Verification for Goal 7.0: State 
Complaint Procedures
    (a) DCPS must submit verification of implementation of its state 
complaint procedures by March 31, 1998.
    (b) DCPS must develop a plan to ensure that all parents and other 
interested individuals are informed regarding complaint management 
procedures. The plan must include how frequently parents and other 
individuals will be informed and the materials to be used. DCPS must 
submit the material to be used to inform parents and other interested 
individuals about its complaint management procedures by March 31, 
1998.
    (c) DCPS must submit quarterly reports to OSEP that include a copy 
of its complaint log verifying that complaints are resolved within 60 
days except where there has been an extension due to an exceptional 
circumstance related to that complaint. For each complaint for which 
DCPS has determined that an exceptional circumstance exists, DCPS must 
submit to OSEP an explanation of the exceptional circumstance. Where 
DCPS finds that the allegations contained in a complaint are true, and 
that noncompliance with regard to an IDEA requirement exists, it must 
ensure that appropriate corrective action is taken in a timely manner. 
These quarterly reports are due on June 30, 1998, September 30, 1998, 
December 31, 1998 and March 31, 1999.
    (d) On a quarterly basis, DCPS must submit to OSEP a sample of 
complaint files for review. OSEP will select the files to be reviewed 
based on the log of complaints submitted above. These files must be 
submitted on July 15, 1998, October 15, 1998, January 15, 1999 and 
April 15, 1999. DCPS is responsible for ensuring that each file 
contains a written decision to the complainant that addresses each 
allegation in the complaint. DCPS must also maintain and make available 
for OSEP review documentation demonstrating that required corrective 
actions have been implemented in a timely manner.
Topic 8.0: Transition
    Current Status: DCPS is not complying with its obligation to ensure 
that no later than age 16, and at a younger age, if determined 
appropriate, a statement of needed transition services is included in 
each student's IEP and if the purpose of the IEP meeting is 
consideration of transition services that all required participants 
have been invited and participate and that a notice containing all 
required content is issued.
Goal: 8.0
    Beginning no later than age 16, and at a younger age, if determined 
appropriate, a statement of needed transition services is included in 
each student's IEP as required by 34 CFR 300.346(b) and if the purpose 
of the IEP meeting is consideration of transition services, that all 
required participants have been invited and participate as required by 
34 CFR 300.344(c) and that a notice containing all required content is 
issued as required by 34 CFR 300.345(b)(2).3
---------------------------------------------------------------------------

    \3\ Implementation of the procedure to include a statement of 
transition service needs beginning at age 14 is required for IEPs 
beginning July 1, 1998.
---------------------------------------------------------------------------

Overall Measurable Outcomes and Verification for Goal 8.0: Transition
    (a) DCPS must develop effective procedures to ensure that (1) 
beginning at age 14, and younger if appropriate, a statement of 
transition service needs or beginning at age 16 (or younger, if 
determined appropriate by the IEP team) a statement of needed 
transition services is included in each student's IEP as required by 
section 614(d)(1)(A)(vii) of Part B of IDEA; (2) the student will be 
invited to the IEP meeting, and if the student does not attend, the 
student's preferences and interests will be considered; (3) an 
individual determination will be made as to participating agency(ies) 
likely to be responsible for providing or paying for transition 
services and a representative of each participating agency(ies) will be 
invited to the IEP meeting. If the agency representative does not 
attend, other steps will be taken to ensure the participation of the 
agency in the planning of any transition services; and (4) the notice 
utilized by public agencies

[[Page 41382]]

to inform parents and other individuals (e.g., students and 
participating agencies) contains all required content.
    (b) DCPS must submit quarterly reports to OSEP describing the 
progress it has made in ensuring compliance with the Part B transition 
requirements. These quarterly reports must be submitted on June 30, 
1998, September 30, 1998, December 31, 1998, and March 31, 1999.
    (c) On a quarterly basis, DCPS must submit a sample of IEPs and 
accompanying notices for students age 16 and older. OSEP will select 
the IEPs to be reviewed. These IEPs must be submitted on July 15, 1998, 
October 15,1998, January 15, 1999, and April 15, 1999.

Topic 9.0: State Advisory Panel

    Current Status: DCPS has not established a State advisory panel 
which meets the requirements of section 612(a)(21) of Part B of IDEA.
Goal 9.0
    Establish a State advisory panel which meets the requirements of 
section 612(a)(21) of Part B of IDEA.
Overall Measurable Outcomes and Verification for Goal 9.0: State 
Advisory Panel
    (a) DCPS must establish a State Advisory Panel which meets the 
requirements of section 612(a)(21) of Part B of IDEA. DCPS must submit 
by May 1, 1998 documentation that a properly constituted Advisory Panel 
has been established and is meeting to carry out the duties described 
in 612(a)(21)(D). Please see Attachment T for a description of the 
membership and appointing authority for the State Advisory Panel.

Topic 10.0: Surrogate Parent Procedures

    Current Status: DCPS is not implementing its procedures to protect 
the rights of the child whenever the parents of the child are not 
known, the agency cannot, after reasonable efforts, locate the parents, 
or the child is a ward of the State.
Goal 10.0
    To implement procedures that meet the requirements of section 
615(b)(2) of Part B of IDEA to protect the rights of the child whenever 
the parents of the child are not known, the agency cannot, after 
reasonable efforts, locate the parents, or the child is a ward of the 
State.
Overall Measurable Outcomes and Verification for Goal 10.0: Surrogate 
Parent Procedures
    (a) DCPS must implement its procedures to protect the rights of the 
child whenever the parents of the child are not known, the agency 
cannot, after reasonable efforts, locate the parents, or the child is a 
ward of the State, including the assignment of a individual (who is not 
an employee of the State education agency, or any other agency that is 
involved in the education or care of the child) to act as a surrogate 
for the parents. DCPS must submit verification of implementation of its 
surrogate parent procedures by May 1, 1998.
    DCPS has engaged a contractor to recruit, train, and support 
surrogate parents. Please see Attachment U for DCPS' work plan for 
recruiting and training surrogate parents. As required, DCPS will have 
final procedures for assignment of surrogate parents, and will submit 
verification of their implementation by May 1, 1998.

Topic 11.0: Provision of Special Education to Limited English 
Proficient Students

    Current Status: DCPS does not have sufficient numbers of personnel 
available to meet the needs of students with disabilities who are 
limited English proficient.
Goal 11.0
    DCPS must ensure that sufficient numbers of personnel are available 
to meet the needs of limited English proficient students.
Overall Measurable Outcomes and Verification for Goal 11.0: Provision 
of Special Education to Limited English Proficient Students
    (a) DCPS must ensure that sufficient numbers of personnel are 
available to meet the needs of students with disabilities who are 
limited English proficient (LEP). Such personnel must include special 
education teachers, psychologists, related service providers, and other 
staff needed to provide special education and related services and to 
conduct evaluations and reevaluations for these students. By April 30, 
1998, DCPS must submit a status report of its efforts to ensure 
sufficient numbers of staff to meet the needs of LEP students. To the 
extent that the report shows that DCPS does not have sufficient numbers 
of personnel, a plan to meet this goal must accompany the report. In 
the event that such a plan is necessary, the plan must be fully 
implemented no later than September 30, 1998.

Other Conditions

    In addition to all of the terms and conditions set forth above, 
DCPS agrees that its continued eligibility to receive Part B funds is 
predicated upon compliance with statutory and regulatory requirements 
of that program, that have not been addressed by this Agreement, 
including the IDEA Amendments of 1997. If DCPS 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 the withholding of funds or the issuance 
of a cease and desist order. 20 U.S.C. Sec. 1234f(d).

    For the District of Columbia Public Schools:

    Dated: March 16, 1998.
General Julius W. Becton, Jr.,
Chief Executive Officer.

    For the United States Department of Education:

    Dated: March 10, 1998.
Honorable Richard W. Riley,
 Secretary of Education.

    Date this Compliance Agreement becomes effective (Date of 
Secretary Riley's Written Decision and Findings): March 10, 1998.
    Expiration Date of this Agreement: March 10, 2001.

[FR Doc. 98-20655 Filed 7-31-98; 8:45 am]
BILLING CODE 4000-01-P