High risk determination. The United States Department of
Education’s General
Administration Regulations in 34CFR 80.12 provide as
Follows:
(a)
A grantee or subgrantee may be considered “high
risk” if an awarding agency
Determines that a grantee or subgrantee:
(1)
Has a history of unsatisfactory performance, or
(2)
Is not financially stable, or
(3)
Has a management system which does not meet the management
standards set
Forth in this part, or
(4)
Has not conformed to terms and conditions of
previous awards. Or
(5)
Is otherwise not responsible; and if the
awarding agency determines that an
Award will be made, special conditions and/or restrictions shall
correspond to the
high risk condition and shall be included in the award.
(b)
Special conditions or restrictions mat include:
(1)
Payment on a reimbursement basis;
(2)
Withholding authority to proceed to the next
phase until receipt of evidence of acceptable performance within a given
funding period.
(3)
Requiring additional, more detailed financial
reports;
(4)
Additional project monitoring ;
(5)
Requiring the grantee or subgrantee to obtain technical
or management
Assistance; or
(6)
Establishing additional prior approvals.
For the reasons described above, OSPI has concluded that SPS
is a high risk grantee. In light of its Level 4 determination, its subsequent
failure to demonstrate compliance with the
requirements of IDEA Part B as a result of the 2013-2014 implementation
of the C-CAP by June 30, 2014, and its failure to have both the required
third-party consultant and a non-interim director of special education services in place to
implement the revised C-CAP, SPS has shown that it has a history of
unsatisfactory performance with respect to the delivery of special education
services under IDEA. Moreover, the District’s non-compliance described in the
Level 4 determination, and its failure to implement the initial C-CAP in a timely
manner, verify that SPS has not conformed to the terms and conditions of
previous Part B awards and the required actions associated with the awards.
Finally, SPS’s June 17th, 2014 internal audit shows that the District’s
management system does not meet the standards required under the Department of
Education’s General Administrative Regulations, 34 CFR Part 80.
Full letter below
September 18,
2014
Dr. Larry Nyland Interim Superintendent Seattle Public
Schools
P.O. Box
34165, MS 32-150
Seattle, WA 98124-1165 Dear
Dr. Nyland:
The
purpose of this letter is to (1) declare the
Seattle Public Schools
(SPS) as a high risk
grantee consistent with
34 CFR § 80.12, and (2) provide notice that the Office of Superintendent of Public Instruction (OSPI) will withhold a portion of the federal funding
available under Part B, Sections 611 and 619 of
the Individuals with Disabilities Education Act
(IDEA) to SPS for the 2014-15 school
year. These actions
are being taken because SPS has
a history of unsatisfactory performance with respect to the delivery of special education services under the IDEA, has not conformed to the terms and conditions of previous awards and
required actions associated with such awards,
has a management system which does not meet the management standards set forth in the United States Department of Education' s General Administrative Regulations, and received a needs substantial
intervention (Level 4) determination for the 2012-13 school year.
I. BACKGROUND
a.
Data collection and monitoring. OSPI's special education program review team annually monitors
selected school
districts' implementation of Part B of the IDEA pursuant
to WAC 392- l72A-07010. Ifthe
program review team identifies specific instances where a district
has not complied with the requirements of IDEA Part B, OSPI will notify the district
of the identified non-compliance to be corrected within one year of notification
of the specific non-compliance. The district then must initiate a process
of corrections, including, if necessary, systemic corrections, to ensure
that the non-compliance is corrected as soon as possible, but no longer than one year from the notification of non-compliance. WAC 392-l 72A-07010(3), 34 CFR § 300.600(e).
Following that, if the district does not timely address
the
identified non-compliance with corrective actions, OSPI is required
to
institute procedures to ensure compliance. WAC 392-172A-07.010(4).
Under separate rules, WAC 392-172A-07012 and 34 CFR § 300.600(a), OSPI annually reviews the data it
obtains from districts through
required
data collection and monitoring (and other information) and, based on that information, issues a
determination regarding each school district's overall compliance with the requirements of Part B of
the IDEA. A "Level I" determination means that OSPI has determined a district meets
the requirements of Part B. In
contrast, a "Level 4"
determination
means the district needs substantial intervention in implementing the requirements of IDEA. A district's determination level triggers certain ob]jgations. Among others,
if OSPI determines that a district needs substantial intervention (Level 4), OSPI "will
withhold, in whole
or in part, any further payments
to the district under Part B." WAC 392-l 72A-07012(4). See 34
CFR §§ 300.600(a)(3), .604(c).
Because determinations under WAC 392-
l 72A-07012 are issued in November
of
an
ongoing school year, OSPI expects
that the district will come into compliance
with IDEA Part B at the concJusion
of the then-current IDEA Part B federal funding
cycle.
b.
The
C-CAP. Following OSPI's on-slte monitoring of
SPS in the 2011-12 and 2012-13 school years, OSPI identified several specific instances where the District was not
complying with
the requirements of IDEA Part B. OSPI concluded that the non-compliance was
systemic in nature
and, pursuant to WAC 392-172A-07010, ordered
the District in spring of 2013 to develop and implement an approved
comprehensive corrective action plan
(C-CAP). In addition,
OSPI required the District to contract with a nationally recognized third-party consultant to provide the technical assistance and resources necessary to implement the C-CAP activities identified by the District. As provided for under WAC 392-l 72A-07010(3), the District was required to demonstrate substantial compliance with IDEA Part B as a result of the
implementation of the C
CAP by June 30, 2014. The District did not challenge any of the conclusions or results of the
program reviews in 2012 or 2013.
SPS did not retain
the required third-party consultants until April
of 2014,just two months before the C-CAP was to be
fully implemented. The District
then requested that the initial
C
CAP be revised
in July of 2014 in order to be successfully implemented. Inan effort to accommodate the delayed start of the extensive C-CAP activities identified in 2013, provide
SPS every opportunity to successfully utilize
its consultants, and involve relevant stakeholders inthe process in a meaningful way, OSPI agreed to extend the implementation of the C-CAP
until June 30, 2015.
Subsequent to this, OSPI was provided
a copy of an internal
audit report as an attachment
to the third-party consultant's report
issued on July 21, 2014. The internal audit, dated June 17, 2014, identified several
accounting, internal control,
and source documentation concerns related to SPS's management of special education funds.
OSPI further learned
from SPS district
staff on August 7, 2014 that the third-party consultant contract awarding process
utilized by the SPS may have been flawed, resulting in the placement of SPS's executive director of special
education on administration leave pending an internal investigation, the appointment of an interim director
of special education, the expiration of the previous consultants' contract, and a new solicitation for a third-party consultant. · ·
c.
Level 4 determination. On November 1, 2013,
OSPI issued
its Level 4 determination for SPS's
2012-13 school year. This, again, was an assessment of the District's overall compliance with IDEA Part B, using data and information provided by the
District to
OSPI. From this evidence, OSPI concluded that SPS had not
corrected all identified issues of non-compliance
associated with the 2011-12 school year within one year of identification.
In a letter to Superintendent Jose Banda dated November 1,
2013, I indicated that, as a result of the Level 4
determination, "The district
must
demonstrate substantial compliance with the requirements of IDEA 2004 as a result of the 2013-14 implementation of the C-CAP by June 30, 2014.
Otherwise, any further payments
of federal IDEA funding to the district will be jeopardized." The
District never objected to or
challenged this determination.
II. HIGH RISK STATUS
a.
High risk determination. The United States Department of Education's
General Administrative Regulations in
34 CPR § 80.12 provide as follows:
(a)
A grantee
or subgrantee may be considered "high
risk" if an awarding agency determines that a grantee or subgrantee:
(1) Has
a history of
unsatisfactory performance,
or
(2) Is
not financially stable, or
(3)
Has a management system which does not meet the management standards set forth in this part, or
(4) Has
not conformed to terms and conditions of previous awards, or
(5)
Is otherwise not responsible; and if the awarding agency
determines that an award will be made, special conditions and/or
restrictions shall correspond to the high
risk condition
and shall be included in the award.
(b) Special conditions or restrictions may include:
(1) Payment on a reimbursement basis;
(2)
Withholding authority to
proceed to the
next phase until receipt of
evidence of acceptable performance within a given
funding period;
(3) Requiring additional, more detailed financial reports;
(4) Additional project monitoring;
(5)
Requiring the grantee or subgrantee to obtain technical or management assistance; or
(6) Establishing additional prior approvals.
For
the reasons described above, OSPI has concluded
that SPS is
a high risk grantee.
In light of its Level 4 determination, its
subsequent failure to demonstrate compliance with the requirements of IDEA Part B as a result of the 2013-14 implementation of the C-CAP by
June 30, 2014, and its failure to have both the required third-party consultant and a non-interim director of special education services
in place to implement the
revised C-CAP, SPS has shown that it has a history of unsatisfactory performance with respect to the
delivery of special education services under the IDEA. Moreover, the District' s non-compliance described in
the
Level 4 determination, and its failure to implement the initial C-CAP in a timely
manner, verify that SPS has not conformed to the term$ and conditions of previous Part B awards and
the required actions associated with the awards.
Finally, SPS's June 17, 2014 internal audit shows that the District's management system does not meet the management standards required under the Department of Education' s General Administrative Regulations,
34
CFR Part 80.
b.
Special conditions. The Department of Education General Administrative Regulations provide at 34 CFR § 80.12(c) that, if an awarding agency
decides to impose conditions on a high risk grantee, the awarding official
will notify the grantee or subgrantee as early as possible,
in writing, of:
(1) The
nature of the special conditions/restrictions;
(2) The
reason(s) for imposing
them;
(3)
The corrective actions which
must be taken before they
will be removed and the time allowed for
completing the corrective actions
and
(4) The
method of
requesting reconsideration of the conditions/restrictions imposed.
The
following oversight
mechanisms, designed
to assist the District
in achieving substantial compliance with
Part B of the IDEA and the revised C-CAP by
June 30, 2015, are conditions to OSPI's award of
the 2014-15 Part B grant:
•
Between October
2014 and May 2015, SPS will host weekly meetings with an on-site compliance
officer designated by OSPI. These meetings wiJl be for the purpose
of monitoring the District' s implementation of the revised C-CAP and to provide technical and management assistance.
•
Between October
2014 and May 2015, SPS will host monthly meetings
with the District
selected third-party contractor, OSPI
program review staff, and identified staff from the Puget Sound Educational Service District
(PSESD). These meetings will be for the purpose of monitoring the District' s implementation
of the revised C-CAP and to provide technical
and management assistance.
•
SPS will submit to on-site quarterly reviews requested by OSPI for staff from the U.S. Department of Education.
These conditions must be met
before the special conditions will
be removed.
c.
Reconsideration of conditions. Ifyou would like
OSPI to reconsider these special conditions to the District's 2014-15
Part B award, please send a letter to my attention by United States mail postmarked no later than thirty days after receiving
this
letter. The letter should
state with particularity any law or facts the District believes
OSPI has overlooked in imposing the conditions.
Ill.WITHHOLDING OF PART B FUNDS
a.
Withholding of funds. Because SPS received a Level 4 determination for the 2012-13 school year, OSPI is required
under WAC 392-l72A-07012(4) to withhold payments to the District under IDEA Part B in whole or in part. Accordingly, OSPI will withhold
an amount of the 2014-15 IDEA
Part B grant to SPS
equal to $3,000,000. This
amount includes
(1)
$1,659,759, the
amount of IDEA funding SPS has reserved
to implement to the revised C-CAP in the District' s most recent application for IDEA Part B funding
in the iGrants form
package 267,
and (2) an ·additional $1,340,241, which is an
amount intended to encourage SPS to meet the foregoing special conditions without creating substantial disruption to the provision of FAPE in the District.
Upon receipt of evidence
of acceptable performance within the 2014-15 grant period, OSPI may incrementally restore a portion
of the withheld amount of $3,000,000 during
the 2014-15 school year. Acceptable performance will be measured
by adequate progress
toward the specific
activities and timelines
associated with the revised C-CAP. OSPI,
PSESD, and the United States Department of Education will verify whether
progress is adequate.
b.
Opportunity for hearing regarding withholding. Under WAC 392-172-06065(2), the District has
an opportunity for a hearing before a designee of the Superintendent of Public Instruction regarding
OSPI's decision to partially withhold
Part B funds. SPS must request the hearing no
later than
thirty days after receiving this notice
of OSPI's action. Within thirty
days following its receipt of a request,
OSPI will hold a hearing to
review whether OSPI's determination to withhold
a portion of SPS's
Part B funding is in error. At the hearing,
the District will have the opportunity to provide the Superintendent's designee
with documentary evidence SPS believes demonstrates that OSPI erred in reaching its determination that Part B funding should be withheld. The designee will consider
any new evidence the
District provides and respond in writing to the District
within thirty days by affirming
OSPI's initial determination, rescinding the determination, or issuing a revised
determination.
Ifthe District rem.ains
unsatisfied with OSPI's
determination, it
will have the
right to file an appeal
of the determination with the Office of Administrative Hearings within thirty days ofreceiving OSPI's final determination .
Thank you very much for your efforts
to improve special
education services in Seattle Public Schools. I am hopeful
that the actions
being taken in this
letter will enable the district to re establish itself as a lighthouse district in special education
in Washington.
Sincerely,
,
Assistant Superintendent
Special
Education
cc: Gil Mendoza, Ed.D.,
Deputy Superintendent, K-12 Education, OSPI
Dr. Kelly Goodsell, Executive Director, Learning, Teaching & Family Support, Puget Sound Educational Service District
121 ·
Mr.
Michael K. Yudin, Acting Assistant Secretary
for Special Education
and Rehabilitative Services, United States Department of Education
Mr. Phillip A. Maestri, Director, Risk Management Services, Office of the Deputy Secretary, United States Department of Education
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