Purpose
The Pennsylvania Department of Education (PDE) is responsible for developing and maintaining a system that ensures that each child with a disability receives a free appropriate public education (FAPE) and that each family has access to a system of procedural safeguards. While local education agencies (LEA) (including charter and cyber charter schools) and mutually agreed upon written arrangement (MAWA) holders have the primary and direct responsibility for providing FAPE, federal law places upon PDE a general supervision responsibility; as well as an obligation to directly provide special education and related services to children with disabilities when it has determined that the LEA is unable to establish or maintain FAPE.
State and federal laws call upon the Secretary to oversee the system and enforce the special education requirements. To accomplish this oversight, PDE created a comprehensive system that coordinates various planning, monitoring, funding and compliance elements. PDE makes determinations annually about the performance of each LEA, MAWA holder, or other public agency using the following categories: meets requirements; needs assistance; needs intervention; needs substantial intervention. PDE also reports the performance of each LEA, MAWA holder, or other public agency annually, and enforces the one-year timeline for correction of any identified noncompliance issues.
LEA or MAWA Holder Compliance with Special Education Statutes and Regulation
PDE recognizes that the creation of quality programming and successful outcomes for students with disabilities requires more than technical compliance with procedural rules. PDE believes, however, that legal compliance is the base on which high-quality programs are built. Conflict between parents and LEAs, MAWA holders, or other public agencies over unresolved compliance issues diverts energy from other educational tasks that deserve our attention. To avoid these diversions of resources, PDE promotes and ensures compliance with special education statutes and regulations through its coordinated program of plan review, complaint management, monitoring, technical assistance and funding decisions.
When compliance issues arise, they are almost always resolved amicably and without undue delay. Thus, the main task for PDE is to address compliance issues clearly and promptly, to take action to ensure compliance, and to enforce the one-year correction timeline.
PDE Response
Noncompliance Issues
In particular, the following will be treated as compliance problems that warrant a prompt response:
- failure to submit an acceptable local plan, or in the case of a charter school, an acceptable annual report;
- failure to implement any component of the corrective action required through the complaint process of the Bureau of Special Education (BSE) within applicable times (including, but not limited to, the failure to submit compliant procedures and protocols or the failure to provide compensatory education services as directed) as per 34 CFR §§ 300.151-300.153;
- failure to implement the corrective action required through BSE monitoring;
- failure to submit required reports, including the reports regarding a need for intensive interagency coordination; and
- failure to implement due process decisions.
PDE’s General Procedures for Addressing Noncompliance
To expedite compliance with the applicable regulations, if corrective action required through BSE’s general supervision system has not been implemented by the deadline assigned in the written notification of noncompliance, BSE, in collaboration with PDE’s Office of Chief Counsel, will implement the following procedures:
- Within 10 calendar days after the due date for completing corrective action, the Special Education Advisor will contact the LEA, MAWA holder, or other public agency to determine the status of any incomplete corrective action and forward a summary to BSE’s Division Chief.
- The Division Chief will contact the Superintendent, Chief Executive Officer, or Executive Director to determine the actions needed to implement the required corrective action and assign a due date for reaching compliance.
- Continued failure to implement the corrective action will result in a meeting with the BSE Director to be held at PDE. The Superintendent, Chief Executive Officer, or Executive Director will be required to attend to address the noncompliance and, if necessary, the enforcement mechanisms that will be utilized to obtain compliance.
- Within 10 calendar days of this meeting, PDE will issue a letter summarizing the results of the meeting. The letter will either confirm the LEA’s, MAWA holder’s, or other public agency’s agreement to expeditiously complete the corrective action and explain the penalty for failing to adhere to the agreement or, in the absence of an agreement, set forth the enforcement mechanism(s) PDE intends to impose.
The specific enforcement mechanism chosen by PDE will vary from case to case. This process is intended to ensure compliance rather than to be punitive. The main features of PDE’s efforts will be to explain the problem, call upon the LEA, MAWA holder, or other public agency to implement the assigned corrective action and assist the LEA, MAWA holder, or other public agency in achieving compliance.
PDE’s General Procedures for Continued Noncompliance
If, however, PDE does not succeed in obtaining prompt compliance, PDE may take more rigorous and progressive steps to ensure that the compliance issue is resolved. Such enforcement mechanisms and sanctions may include, but are not limited to, the following measures:
- a local special education plan or annual report may be disapproved and, in the case of a charter school, the chartering entity will be notified of the noncompliance;
- consistent with state and federal law, the disbursement of funds, including basic education funding, may be deferred pending resolution of the issue, and, in the case of a charter school, PDE may direct the chartering entity to take appropriate action;
- action consistent with state and federal law may be taken to reduce the amount of funds paid to the LEA, MAWA holder, or other public agency to offset the amount of money needed to provide an education to a particular child or children if an LEA, MAWA holder, or other public agency is unwilling or unable to provide services;
- PDE may seek court action against the LEA, MAWA holder, or other public agency to obtain an order requiring it to take specific actions consistent with state and federal law;
- PDE may join in legal action initiated by parents; or
- PDE may take action affecting the commission of the superintendent or other commissioned officer responsible for administering the educational program.
To the extent required by law, prior to imposing these measures upon an LEA, MAWA holder, or other public agency for failure to implement BSE-issued corrective action regarding a child or children with a disability whom the LEA, MAWA holder, or other public agency is responsible to educate, PDE will provide the LEA, MAWA holder, or other public agency the opportunity to request a hearing under the Administrative Agency Law, 2 Pa.C.S. §§501-508. A hearing under the Administrative Agency Law, 2 Pa.C.S. §§501-508 is not available to either party to challenge the corrective action ordered via a Complaint Investigation Report (CIR).
Violations of federal laws and regulations governing children with disabilities can form the basis of the nonrenewal or termination of a charter.
None of these steps are desirable, and none should be necessary if each LEA, MAWA holder, or other public agency is familiar with and attentive to the laws governing special education and complies with corrective action within set time periods. It is PDE’s goal that consultation between PDE and LEAs, MAWA holders, or other public agencies will avoid the need to take any of the steps described above. It is the obligation and the policy of PDE, however, to use these steps whenever necessary to ensure that the rights of Pennsylvania’s children with disabilities are met in accordance with the state’s obligations.
Direct Services to Students Pending Enforcement Mechanisms
If necessary, PDE may take additional steps to ensure that student services are provided during these processes, which may include PDE providing and/or arranging for student services at the expense of the LEA, MAWA holder, or other public agency.
References
Purdon's Statutes
24 P.S. Section §13-1357
24 P.S. Section §13-1372
24 P.S. Section §17-1729-A(a)(5)
24 P.S. Section 17-1728-A(b)
24 P.S. Section 17-1732-A(c)(1)-(2)
24 P.S. Section §25-2552
State Board of Education Regulations
22 Pa. Code Chapter 14
22 Pa. Code Chapter 711
Federal Statute
20 U.S.C. §1412
20 U.S.C. §1416
20 U.S.C. §1232d
Federal Regulation
34 CFR Part 300
Bureau/Office Contact
Bureau of Special Education
Pennsylvania Department of Education
Forum Building
607 South Drive
Harrisburg, PA 17120
Phone: 717-783-6134