[Federal Register Volume 65, Number 36 (Wednesday, February 23, 2000)]
[Notices]
[Pages 9090-9176]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-4085]



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Part IV





Department of Education





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

  Federal Register / Vol. 65, No. 36 / Wednesday, February 23, 2000 / 
Notices  

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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.

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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 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).

I. 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\
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    \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).
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    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).
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    \2\ The Department's authority to declare a grantee ``high 
risk'' and impose special conditions is set out at 34 80.12.
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    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

[[Page 9091]]

maintain its eligibility to receive funds under that program. 20 U.S.C. 
1234c.
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    \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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II. Relevant Statutory and Regulatory Provisions

A. 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:
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    \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).
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    \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 
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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.

B. 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

[[Page 9092]]

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).

III. Analysis

A. 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.

B. 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 (filed in 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.


[[Page 9093]]


    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\
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    \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.
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    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.

C. 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

[[Page 9094]]

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

[[Page 9095]]

compliance with Part B within three years.

IV. 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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APPENDIX C--DATA REPORTS

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[FR Doc. 00-4085 Filed 2-22-00; 8:45 am]
BILLING CODE 4000-01-C