Delaware To Get Federal “Needs Intervention” In Special Education Again As Incompetent DOE Lies At Public Meeting

Delaware WILL get a “Needs Intervention” label for their Annual IDEA Determination from the Office of Special Educations Programs at the United States Department of Education.  The Delaware DOE knows this, but they aren’t announcing it.  My guess is they are waiting for the “formal” letter to come from the feds before they publicly release this information to the public.  Even though they were told this information at least four weeks ago.  If I were a betting man, we won’t find this out until after June 30th.  I predicted this three weeks ago when I found the letters that went out to the districts and charters.

At the Governor’s Advisory Council for Exceptional Citizens meeting on Tuesday night, the Exceptional Children Resources Group at the DOE gave a presentation to the council on the Local Education Authority (LEA) portion of the annual determination.  The presentation was given by Barbara Mazza and Maria Locuniak from the DOE.  In this presentation, there were several absolute lies that are in this article, for which I caught them red-handed.  It is very alarming they would try to dupe a state council devoted to the improvement of outcomes for persons with disabilities.

The annual determination was based on information from the federal fiscal year (FFY) 2014.  But the DOE used FFY2014 and FFY2015 data in their determinations.  The federal fiscal year ran from October 1st, 2013 until September 30th, 2014.  But they used Smarter Balanced Assessment information to account for well over two-thirds of the determinations for school districts and charters.  When I questioned the DOE about this, they responded by stating:

The federal fiscal year, when you say federal fiscal year 14, it means the 14-15 school year, when you say fiscal year statewide, it means spring of 2015.  So it’s the same thing.  These are the Spring 2015 Smarter Balanced scores.

Actually, it doesn’t.  Delaware’s fiscal year 2014 ran from July 1st, 2013 until June 30th, 2014.  Our DOE doesn’t even know what a fiscal year is.  Or which years they used the data from.  Because the picture from their handout clearly shows they used data from both years.


Locuniak explained they do compliance monitoring throughout the year, but said the results portion is what they really focus on.  I believe her, because the below picture from 2014 shows how they don’t really review that many files based on the schools they monitor.  Basic special education files weren’t even looked at for most of the schools they reviewed for that year.


When asked a question by GACEC member Keith Morton (also the Executive Director of the Parent Information Center) about how the monitoring works, Locuniak explained everyone gets monitored every year, but they perform on-site monitoring on a rotating basis every three years.  Locuniak from the DOE didn’t even know the rotating schedule in which her area of the DOE monitors different districts and charters in Delaware.  Later on in the meeting I questioned Locuniak about this.  I pointed out the DOE changed this to a five-year rotating schedule two years ago.  Mazza corrected Locuniak’s earlier statement and confirmed it is done on a five-year rotating basis, not a three-year.

Because IEPs are stored on a system called IEP Plus, the DOE can just go into the system to see if files are faithfully executed with fidelity.  Their goal is to NOT have to go into actual schools and do anything.  In fact, the wrong information could be on an IEP, but as long as the field is filled out that is acceptable to the DOE.

There was an apparent bias in the positive towards Delaware charter schools coming from the DOE.  In fact, out of the fourteen school districts and charter schools that received the designation of “meets requirements”, ten were charters, three were vocational districts, and only one regular school district.  This was pointed out by GACEC member Bill Doolittle.

Of all the schools that meet requirements, only two do not have restrictive admission policies.



Doolittle also pointed out that the schools that “need intervention” are 30% of Delaware schools but represent over 50% of students with disabilities in Delaware.  He also noted that since the new “results-based” system came out two years ago, 68% is based on the state test.  Mazza responded to this by saying:

When we started working with this, it was the only fair way to do it.  We have schools that don’t have certain cells.  We can have a school that doesn’t have a group of cells.  We have to take a look at that.

Doolittle responded:

We never set cut scores by grade, so the same cut score by grade really doesn’t make any sense.

Mazza said those targets were determined by ESEA and in the future will be set by ESSA.  Doolittle pointed out they could be set by grade but Delaware chose not to.  Mazza responded:

That’s a Delaware thing, not Exceptional Children.

The true danger with this new “results-driven” IDEA Annual Determination is what happens with school’s that are placed on corrective action plans based on their annual label by  the Delaware DOE.  Most of the schools that “need intervention” fell into this category because of performance on the Smarter Balanced Assessment.  Many of the charters and districts in this category have very high populations of students with disabilities who are also low-income students.  These students deal with hunger, violence, and trauma based on their environments.  But the Exceptional Children Resources group has absolutely no regard for that based on Mazza’s very arrogant comment during the presentation:

They develop a corrective action plan based on their data.  They submit it to the Department.  We review it with them, and then they have to submit updates throughout the year so we know where we are in terms of their roles, what they said they were going to do.  With intervention plans, if the corrective action plan didn’t work, then we stick with them and we develop it with them together.  Because developing it on their own didn’t work out so well.  Then if the intervention plan doesn’t happen and it doesn’t actually make the changes we needed to make then we move up to a compliance agreement.  The LEA has no say in anything.  That’s the Department giving the total directive: You will do this, you will do this, you will do this.  The DOE’s involvement increases as the tiers go up.

So as Smarter Balanced cut scores are set with no exceptions given for disability status or low-income status as a contributing factor on a student’s performance on the test, the Delaware DOE and US DOE turn a blind eye to these facts and will continue to falsely label schools based on the results of the test.  In addition, participation rate factors into these false labels.  The Delaware DOE actually thinks they have the power and authority to control a parent’s decision to opt their child out of the state assessment.  And if they are unable to exert that authority, they get on their bully pulpit and will “force” a school to comply when there are factors they have absolutely no control over.

Morton asked a very important question after that:

As a parent, can I request to see this plan or status or update on their monitoring or corrective action plan?

Mazza responded:

That’s kind of an internal document but you can you see the determination which got them there.

What the DOE failed to mention in this entire presentation was what their rating was, what the State of Delaware received from OSEP.  Based on the findings I determined in my article a few weeks ago and what the DOE has been told (verified by many sources), Delaware will receive, again, a rating of “needs intervention”.  This will be the 2nd time the DOE has received this designation in the past three years.

Early in the presentation, Locuniak stated the following:

So, as you can see in this chart, we report our state data to OSEP and then the feds issue an annual determination of each state, including Delaware.  And then we as a Department issue annual determinations to each LEA.

As Locuniak was trying to leave after the presentation, I asked her what Delaware’s Annual IDEA Determination was.  She said they don’t know yet.  This completely contradicted what she said in her presentation.  The DOE knows, but they aren’t saying.

Below are links to the OSEP letters the Delaware DOE has received for the past ten years:

2006: Meets Requirements, letter talks about Delaware’s long-standing non-compliance with placing students with disabilities in the least-restrictive environment.

2007: Needs Assistance

2008: Meets Requirements

2009: Needs Assistance

2010: Meets Requirements

2011: Needs Assistance

2012: Meets Requirements

2013: Needs Assistance

2014: Needs Intervention

2015: Needs Assistance

2016: Needs Intervention

Since Jack Markell became Governor, there have only been two years Delaware was rated “meets requirements” for special education and one of those years was based on data from Governor Minner’s administration.  In fact, ever since Common Core was introduced, our special education ratings have been very bad.  There is a clear pattern prior to Common Core where DOE got the “needs assistance”, corrected what was wrong, and went back to “meets requirements” the next year.  That pattern went on for seven years.  But ever since then, we are getting worse as a state.  In 2014, the DOE began pushing “standards-based IEPs” on school districts.  While they will deny this is based on performance on state assessments, it clearly is a method for crafting IEPs to improve performance on the Smarter Balanced Assessment.  The feds appear to be in on it as well since they are forcing states to base their plans more on “results” than “compliance”.  But the Exceptional Children Resources Group at the DOE will not take any accountability for their complete incompetence and ignorance of the true problems students with disabilities face.  Nor do they appear to know how to allocate federal IDEA funds.

Where this gets more interesting is a letter I found on the OSEP website, but does not appear on the Delaware DOE website.  This letter stated Delaware had been found to be out of compliance with OSEP’s fiscal monitoring for how Delaware handles special education funding.  A lot of this non-compliance dealt with what is called “excess IDEA funds”.  When a school district or charter school receives IDEA Part B funding from the feds, it can only use those funds for certain things.  Delaware was out of compliance for the following in the 2014 fiscal monitoring by OSEP:

The SEA (Delaware DOE) has procedures to allocate the IDEA section 611 and section 619 subgrants to eligible LEAs based on the correct formula.

In a nutshell, the DOE was only using some of the assurances school districts and charters had to provide to the DOE that they were spending special education funds the right way, but not all of them.

The SEA has procedures to ensure that LEAs are provided 27 months to obligate funds.

OSEP found Delaware only used 26 months.  What this means is that, as an example, if Congress allocates IDEA funds to a state, the state then allocates those IDEA funds to the districts and charters.  They get a portion of these funds on July 1st, and the remaining on October 1st of that same year.  Any funds they do not use by September 30th of the next year, they can carry those funds over for the next 12 months.  Any funds left after that, must be returned to the feds.

As an example, Delaware gets $5 million in IDEA funds on 7/1/2016.  They sent $200,000 of that to Red Clay on 7/1/2016 and another $800,000 on 10/1/2016.  As of 9/30/2017, Red Clay only used $750,000.  They can carry over the extra $50,000 for the next 12 months until 9/30/2018.  If they don’t use that full $50,000 by then based on the money allocated on 10/1/2016, they have to return those funds.

The SEA has procedures to reallocate IDEA section 611 and section 619 subgrants, when appropriate, consistent with the regulations.

How the DOE messed up on this section was they were allocating special education funds based on populations and poverty.  This portion of IDEA law is the DOE also had to ensure districts and charters were providing a Free Appropriate Public Education (FAPE) or providing the adequate special education and related services to all children with disabilities.

The SEA (Delaware DOE) has procedures to ensure that LEAs use IDEA funds only to pay the excess costs of providing special education and related services to children with disabilities in accordance with IDEA.

…the state’s procedures for computing excess costs do not ensure the LEAs use the average annual per student expenditure to determine the minimum amount of funds the LEA must spend for the education of children with disabilities before using IDEA Part B funds.

Excess costs are those costs that are in excess of the average annual per student expenditure in an LEA during the preceding school year for an elementary school or secondary school student, as appropriate, and that are computed using the method described in… (seen in the below document)

The DOE wasn’t making sure districts were actually using the funds given to them by the state and the feds for special education!

The State has procedures to calculate its financial support for special education and related services for children with disabilities in accordance with IDEA.

The DOE was only submitting the money they sent to districts and charters, not funds coming from other state agencies who do receive IDEA funding from the feds, like the Dept. of Health and Human Services.

The SEA has procedures to ensure that each LEA budgets, for the education of children with disabilities, at least the same amount as the LEA spent for that purpose in the most recent prior year for which information is available.

The SEA has procedures to ensure that each LEA expends at least the same amount as it expended in the immediate prior year for the education of children with disabilities, unless the LEA has allowable exceptions or adjustments.

This is known as “Maintenance of Effort”.  Under federal regulation, a school district or charter can not budget less money for special education than they did the prior year.  The DOE wasn’t making sure all districts and charters did this.

On 12/19/2014, Melody Musgrove with the Office of Special Education Programs at the US DOE sent former Secretary of Education Mark Murphy a letter indicating Delaware had corrected these problems.

While the letter does not reveal exactly how the DOE corrected the non-compliance issues, the fact remains they were out of compliance and did not provide this information on their website.  Was the State of Delaware aware of what was going on?  Absolutely.  As early as 2012 based on two independent audits which showed a material weakness with the state on spending of IDEA funds, as well as several other education funding issues.  Delaware allowed school districts to budget less for special education than they were allowed based on the law.  This wasn’t chump change either.  $4.79 million less was budgeted for special education for six school districts in 2010 based on the findings of the audit.

How many Delaware students did not receive FAPE because the state of Delaware took nearly four years to correct these problems?  How many school districts did not adequately fund IDEA Special Education for students?  And yet none of Delaware’s charters were looked at for how they are using special education funds.  There is no viable mechanism in the State of Delaware to do this since the audits they receive from their independent auditors do not carefully review these allocations.  The DOE may monitor them for this, but based on everything I have written in this article, I have zero faith in their capability to do the right thing or even how to do the right thing.

Since then, the Delaware DOE has issued guidance to districts and charters in how they can accurately spend IDEA funds for special education:

Recently, a gentleman by the name of Jack Wells, a Red Clay resident, has been hammering the State and the DOE to find out how Red Clay spends their special education funding.  As of yet, he has not received the answers he is looking for.  My suspicion is many districts and charters are not using the funds with absolute certainty it matches how they are supposed to spend the funds.  Our auditor’s office needs to do a top-down inspection of all funding related to special education, from the funds we get from the US DOE down to individual schools.

When I hear parents talking about their child not receiving the services that are clearly spelled out in their IEP, it is very concerning to me.  The number of due process hearings and complaints going to the DOE is increasing dramatically this year.  Information provided by the DOE at the GACEC meeting concerning these types of complaints provided information that last year there were 19 complaints submitted to the DOE.  None of those went to a due process hearing.  This year, there have been 35 complaints resulting in 5-6 that have gone to a due process hearing.  That is a huge uptick!  And that doesn’t include all of the special education lawsuits being handled independently outside of the DOE’s purveyance between special education attorneys and district or charter attorneys.

It was also revealed during the DOE update to the GACEC that the software used for IEPs called IEP Plus will be upgraded from IEP Plus 4 to IEP Plus 5.  While the functionalities and navigation will be easier for districts and teachers, it will become a cloud-based service.  This system is owned by the same system that owns the e-School system, SunGard.  I will be touching base on this aspect in another article concerning e-School and other systems our schools use for reporting, but I just want to point out the data security concerns I have with any cloud-based system.  Students with disabilities have some of the most intense student data files compared to their peers, and I have big issues with the potential for any of that information to get out.

Special education in Delaware is a train wreck.  The train crashed a long time ago, but it has been burning ever since.  The students with disabilities are the ones in the fire.  They are not getting what they deserve.  And in all of this, all this fiscal, compliance, and result-based monitoring, NO ONE draws attention to the fact that Basic Special Education students in Kindergarten to 3rd Grade receive NO funds from the State of Delaware.  The bill was released from the House Appropriations Committee last week.  Today, State Rep. Kim Williams placed an amendment on the bill which states:

This amendment makes the provisions of the bill contingent upon funding and phases in the increased funding for K-3 basic special education over four years.

I am assuming the House would vote on this amendment when or if it gets to a full House vote. With three voting days left, the time is NOW to get this done.  I love the fight Kim Williams has fought for this bill over the past year and a half, but these kids need this funding NOW!  I understand the budget constraints and deficits and all that.  But these are funds which should have never been denied these kids.  NEVER!  But Governor Markell, the Delaware DOE, and the US DOE don’t seem to care at all about this.  They are perfectly content with districts and charters to pay for what amounts to 85-90% of the costs to cover basic special education services for children in these grades above the regular unit funding each student in the state gets from the state.  I will be watching the final Delaware budget very closely for any “slush funds” that are happening instead of covering the costs needed to provide this funding now.

Two years ago, Governor Markell set aside funds in the epilogue language of the FY2015 budget for a special education strategic plan.  Here we are, two years later, with another label of “needs intervention” based on the most idiotic indicators imaginable, and we still have no strategic plan.  But I’m sure we paid the ex-Rodel employee a huge amount of money to get this done!  The DOE will be putting together another “guiding coalition” without any parent representation to put steps forward to increase the literacy initiatives through the Response to Intervention (RtI) process in schools.  RtI is a special education killer for kids in early grades.  It is a substitute for services they should be getting.  Federal guidance states it shouldn’t be used as a replacement for special education services for children with disabilities, but it is happening everywhere.  The DOE and State Board of Education would rather push that than ensure our children with disabilities are getting the services they are entitled to by federal and state law.

The DOE is certainly free to argue any points I made in this article concerning their presentation to the GACEC, but I recorded the whole thing.


2 thoughts on “Delaware To Get Federal “Needs Intervention” In Special Education Again As Incompetent DOE Lies At Public Meeting

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