Noncompliance and Correction (OSEP Memo 09-02) June 2012.

Noncompliance and Correction

(OSEP Memo 09-02)June 2012

• Noncompliance and correction information is reported in the State Performance Plan (SPP) and Annual Performance Report (APR) under Indicator 15

• This is a State-level Indicator– Data is not reported at the LEA level– Used to make LEA Determinations

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• Issued October 17, 2008

• The purpose of the memo is to:– reiterate the steps a State must take in order

to report that the previously identified noncompliance has been corrected

– describe how OSEP will factor evidence of correction into analysis of State compliance for the purposes of determinations

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• States must account for ALL instances of noncompliance, including noncompliance identified through:– On-site monitoring or other monitoring

activities– Review of data– Fiscal monitoring– Any other source

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• The State is obligated to issue a written finding of noncompliance when it discovers any violation of IDEA or State Board Policy, no matter how the noncompliance is discovered.

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On-Site Activities– Focused Monitoring– Investigation of Formal State Complaints– Audit Visits– Technical Assistance Visits– Fiscal Audits and Monitoring

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Data Reviews– Data entered in MSIS– Data reported in the SPP/APR– Data reviewed on-site– Fiscal data reported to the State

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• Once noncompliance has been identified, a written notice will be issued to the LEA. This notice may be in the form of a letter, or a report from the State.

• LEAs will have 12 months to correct noncompliance.

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• If the source of noncompliance is from a data review, the LEA may be offered the opportunity to verify the data submitted to the State before a written finding is issued.

• Proof of accurate data will be required– Example: Copy of IEP, signature sheets, etc.

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When data demonstrates possible noncompliance, a review of policies, procedures, and practices will be conducted.– This may be a guided self-review utilizing a

checklist provided by the State

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• In most cases, LEAs who receive written findings of noncompliance must submit an Improvement Plan to the State.

• The Improvement Plan must detail the actions the LEA will take to correct noncompliance.

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Noncompliance must be corrected as soon as possible, but in no case later than 12 months from the date of written notification.– Follow-up visits and/or data reviews may be

conducted to ensure correction

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In order to verify correction of noncompliance, both prongs of OSEP Memo 09-02 must be met:– Prong 1: Correct each individual original case

of noncompliance– Prong 2: Correctly implement the specific

regulatory requirements (i.e. achieved 100% compliance), based on the State’s review of updated data

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Each case of noncompliance originally found must be corrected within 12 months.– Ex: Services provided to student, IEP revised,

etc.– The only exception is when a student is no

longer within the LEA’s jurisdiction

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• Prong 2 serves to ensure that the same type of noncompliance is not re-occurring

• LEAs may be required to change policies, procedures, and/or practices

• An additional data review will take place to determine if prong 2 is met

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• Data review will look at a similar group of students for the current school year or the most recent school year for which data is available

• LEAs must exhibit 100% compliance in order to satisfy Prong 2

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• September 2011 – On-site monitoring visit (SY 2010-11 records reviewed)

• October 2011 – Report with noncompliance issued

• November 2011 – LEA submits Improvement Plan and begins correction of noncompliance

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• February 2012 – Follow-up visit (Original noncompliance reviewed PLUS 2011-2012 records reviewed)

• March 2012 – District cleared if 2010-2011 and 2011-2012 records show 100% compliance

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Meets Requirements – No noncompliance identified or correction took place within 12 months

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Needs Assistance – LEA has noncompliance for more than 12 months– Report to Office of Accreditation who will issue

a Letter of Warning– Public Notice of continued noncompliance in

local newspaper

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Needs Intervention – LEA has noncompliance for more than 24 months– Accreditation will issue an Advised status and

require CAP within 60 days– Meeting with local school– Appoint a Special Education Consultant

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Needs Substantial Intervention – LEA has noncompliance for 36 months or more– Comprehensive audit of LEA use of local and State

funds– Accreditation will issue a Probation status and require

a State Board approved CAP within 60 days– Withholding of funds– Withdraw Accreditation

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• Q. How can I correct a missed timeline?

• A. Correction of noncompliance related to timeline indicators (Ind 11 & 12) is defined as completing the action (eligibility determination, IEP), though late, unless the child is no longer within the jurisdiction of the LEA.

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• Missed Timelines for evaluations (Ex: Indicators 11 and 12)

• The ONLY acceptable exceptions to the timelines are:– The parent of a child repeatedly fails to produce the child

for the evaluation– Child enrolls in a school of another public agency after the

relevant timeframe has begun, and prior to a determination by the previous public agency

– For SLD evaluation, parents and evaluation team may agree to extend timeline (must have written mutual agreement)

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• NO exceptions for holidays, staff unavailability, failed hearing/vision screenings, paperwork delays, inclement weather, summer months, etc.

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• Q. If our district was noncompliant last year but we have since corrected all noncompliance, will we still have to implement an Improvement Plan?

• A. If the State can verify correction of noncompliance in accordance with the 2 prongs of OSEP Memo 09-02 BEFORE we issue a finding of noncompliance, the State has the option to not issue the finding. This means that a review of updated data shows no additional noncompliance, and that all previous noncompliance was corrected.

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• Q. What happens if my district is put on an Improvement Plan?

• A. The district must implement policies and procedures to correct noncompliance. A monthly data review may be required (usually 6 months). If additional noncompliance is found during this time, the district will be moved to the next sanction level.

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• In order to clear noncompliance/findings, LEAs must satisfy both prongs of OSEP Memo 09-02

• Ensures that individual cases of noncompliance do not become systemic problems

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Deborah DonovanSPP/APR Division Directorddonovan@mde.k12.ms.us

601-359-3498http://www.mde.k12.ms.us/special_education/

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