IDEA EQUITABLE SERVICES:SERVING PARENTALLY PLACED PRIVATE SCHOOL STUDENTS WITH DISABILITIES Jennifer S. Mauskapf, Esq. jmauskapf@bruman.com Brustein & Manasevit, PLLCSpring 2012 Forum

OVERVIEW

Child Find Consultation Complaint Processes Proportionate Share Provision of Services Q & A

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•What is Child Find?•Parentally Placed Private School Children

Child Find3

What is Child Find?

Identify, locate and evaluate all children that “reside in the state” and meet the definition of “child with a disability” Includes public & private schools

Data reporting – different purposes General child find – number served (Oct.-

Dec.); Private school child find – number

evaluated, eligible, served

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Child Find and Private Schools

“Each LEA must locate, identify and evaluate all children with disabilities who are enrolled by their parents in

private, including religious, elementary and secondary schools

located in the school district served by the LEA.”

34 CFR § 300.131(a)(2006)

LEA must identify all “parentally placed private school children” with disabilities

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Parentally-Placed Private School Children w/ Disabilities 34 CFR §§ 300.130 – 300.144 Who are these children?

Voluntarily enrolled by their parents in private schools Not referred to private schools to receive FAPE

Right to “equitable participation services” in IDEA, Part B NO individual right to services, not entitled to FAPE

Must spend proportionate share of Part B subgrant funds on providing special education and related services LEA makes final decisions on services – type, how,

where, by whom “Services Plan” vs. IEP “Must Spend” Special carry-over rule

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Consultation7

IDEA Consultation Requirements

“Timely and meaningful” consultation

Who? Private school representatives Representatives of parents of

parentally-placed private school children with disabilities

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CONSULTATION:Must be “Timely and Meaningful” Timely

Before the LEA makes any decisions Meaningful

Genuine opportunity for parties to express their views

Views seriously considered Not unilateral offer without opportunity for

discussion BUT NOTE:

LEA has final decision

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Required Consultation Topics

1- Child find process 2- Proportionate share of Part B funds

How calculated (Appendix B) Crucial to have accurate count of eligible

children 3- Consultation Process

How will consultation operate throughout the year to ensure parentally-placed private school children with disabilities can meaningfully participate?

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Required Consultation Topics (cont.)

4- Provision of special education & related services a- How, where, and by whom b- Types of services c- How apportioned if funds insufficient for

all d- How and when decisions will be made

5- How LEA will provide written explanation when LEA final decision on services disagrees with private school officials

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Proof of Consultation

Written explanation by LEA regarding services Must include explanations where LEA disagrees

with views of private school representatives Signed, “written affirmation” from

representatives of participating private schools after timely and meaningful consultation has occurred Attendance/Sign-in sheet NOT sufficient

If no affirmation provided within “reasonable period of time” after consultation, forward to SEA documentation of consultation process

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Complaint Processes13

Private School Officials’ Right to Submit State Complaint

Private School Official has the right to complain to the SEA that the LEA… Did not engage in consultation that was

“meaningful and timely”; and/or Did not give due consideration to views of private

school officials. Private School Official provides basis for

complaint to SEA; LEA required to forward the appropriate documentation to the SEA

SEA decisions may be appealed to USDE Secretary

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Due Process

A parent of a SWD parentally placed private school has a right to file a due process complaint regarding the child find requirements. Must be filed with the LEA in which the private

school is located; LEA must forward a copy to the SEA.

Because there is no individual right to services for parentally placed SWDs no standing to file a due process complaint on any other grounds.

See 34 CFR § 300.140.

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Proportionate Share16

The Proportionate Share Set Aside LEA must calculate the proportionate

share for parentally-placed private school children with disabilities before earmarking funds for any early intervening activities in § 300.226. (Appendix B to regulations)

How are numbers of parentally-placed private school children with disabilities derived? LEA determines the number, after

consultation requirements

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Calculating the Proportionate Share

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Number of eligible parentally-placed private

school CWDs _______________

Total number of eligible CWDs in the LEA (public

and private)

% of LEA IDEA, Part B Grant for Equitable

Services to Parentally-Placed CWDs

Additional Considerations

Reverse supplement not supplant requirement! State and local funds may supplement and in no

case supplant the proportionate share of Federal Part B funds required to be expended.

Spend your federal funds first! CARRYOVER

If LEA has not expended by end of FY, must obligate remaining funds on equitable participation services for parentally-placed private school CWDs during carryover period of one additional year. 34 C.F.R. § 300.133(a)(3).

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Administrative Costs

Off the top!! Before public and private school allocations

are calculated LEA administrative costs for public and

private school program Third party provider (contractors/private

companies) administrative cost (including fee or profit)

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Calculate the Proportionate Share

LEA Child Find Results: A total of 20,000 SWDs Of those, 2,000 are parentally placed SWDs Half of the eligible parentally placed SWDs

participate in equitable services What % of the LEA’s IDEA, Part B Grant

for Equitable Services should be used for providing equitable services to Parentally-Placed CWDs?

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Calculate the Proportionate Share (cont.)

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REMEMBER: Calculation based on students eligible, not just those participating.

Number of eligible parentally-placed private

school CWDs 2,000

_______________

Total number of eligible CWDs in the LEA (public and

private)20,000

% of LEA IDEA, Part B Grant for Equitable Services to Parentally-Placed CWDs

0.1 = 10%

Carryover

“…LEA must spend” the proportionate share If fails to spend entire proportionate share for the

given year LEA must obligate remaining funds for equitable services for a carry-over period of one additional year.

At end of carry-over year? Assuming LEA is in compliance with Child Find,

consultation, and other IDEA equitable services requirements LEA may use the unexpended funds to pay for other allowable Part B expenditures for that same LEA.

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Provision of Services24

Delivery and Provision of Services

Requirement is to provide “special education and related services (including direct services)” Not required to provide direct services exclusively Possibilities: consultative services, equipment or

materials for eligible parentally placed CWDs, training for private school teachers and other private school personnel

No individual right to services Does NOT include Child Find activities

Provided directly by LEA or through private company May be on-site at private school, with safeguards

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§ 1119 Staff Qualifications

Do NOT apply to: Private school teachers or paraprofessionals Third party contractor teachers or

paraprofessionals DOES apply to:

LEA teachers teaching private school students LEA paraprofessionals

G-3. States may exceed IDEA requirements and require teachers in private schools hold certain credentials or certifications if consistent with State law.

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Services Plan

34 CFR §§ 300.132(b) and 300.138(b) To the extent appropriate, must be

developed, reviewed, and revised in accordance with the IEP requirements in 34 CFR §§ 300.321-324 Review periodically and revise as necessary Parent participation in review and

development

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LEA Maintains Control

LEA plans, designs, and implements program (through timely and meaningful consultation)

LEA controls all finances *Includes maintaining title to materials,

equipment, and property purchased with those funds

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GUIDANCE29

OSEP’s IDEA Websitehttp://idea.ed.gov

The Right IDEAOSEP’s New Technical Assistance and Guidance Websitehttp://therightidea.tadnet.org/

Q&A on Serving Children With Disabilities Placed by Their Parents at Private Schools (April 2011)http://idea.ed.gov/explore/view/p/%2Croot%2Cdynamic%2CQaCorner%2C1%2C

ONPE’s IDEA Booklet: http://www.ed.gov/admins/lead/speced/privateschools/index.html

Equitable Services Citations

ESEA Title IX, Uniform Provisions: § § 9501-9506

*Governs equitable services under NINE NCLB Programs

Title I-A: § 1120 Title V-A: § 5142 (last appropriated 2007) Title V-D-6: § 5466 (last appropriated 2009)

IDEA 20 USC § 1412(a)(10)(A)/IDEA § 612(a)(10)(A) See also IDEA Regs., §§ 300.130-300.144

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Questions?31

This presentation is intended solely to provide general information and does

not constitute legal advice. Attendance at the presentation or later review of

these printed materials does not create an attorney-client relationship with

Brustein & Manasevit, PLLC. You should not take any action based upon any

information in this presentation without first consulting legal counsel familiar with your particular circumstances.

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