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

June 2012 Office of Instructional Enhancement and Internal Operations/Office of Special Education 2

• 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


• 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


• 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.


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


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


• 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.


• 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.


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


• 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.


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


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


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


• 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


• 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


• 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


• 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


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


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


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


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


• 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.


• 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)


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


• 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.


• 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.


• 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


Deborah DonovanSPP/APR Division [email protected]

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


http://www.mde.k12.ms.us/special_education/

Documents

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