Transcript idea supplement not supplant

IDEA, Part B
Hot Topics and Updates
Bonnie L. Graham, Esq.
[email protected]
Jennifer B. Segal, Esq.
[email protected]
Brustein & Manasevit, PLLC
Fall Forum 2013
Agenda
-
-
Maintenance of Effort
Supplement Not Supplant
Use of Funds
Dispute Resolution
Subgrant
Brustein & Manasevit, PLLC
2
IDEA, PART B STATE AND
LOCAL MAINTENANCE
OF EFFORT
What???
Keep It Up!
Brustein & Manasevit, PLLC
3
State Maintenance of Financial
Support (MFS)
(State Maintenance of Effort (MOE))

A State must not reduce the amount of State financial
support for special education and related services for
children with disabilities below the amount of that
support for the preceding fiscal year.
◦ Must use ALL State funds!!
Brustein & Manasevit, PLLC
4
Failure to Meet State MOE

Consequences for failure to maintain support:
◦ ED reduces allocation for any FY following the FY in
which the State fails to comply.
◦ Reduction is the same amount by which the State fails to
meet the requirement.
◦ Following year reverts back to previous level of effort

Ability of SEA to reduce its MOE is VERY RARE!
Brustein & Manasevit, PLLC
5
Local-level Maintenance of
Effort (MOE)

An LEA may not use its Part B funds to reduce the
level of expenditures for the education of children
with disabilities made by the LEA from local funds
below the level of those expenditures for the
preceding fiscal year.
(IDEA Regs Section 300.203(a))
Brustein & Manasevit, PLLC
6
Local-level Maintenance of
Effort (MOE) (cont.)

SEA must determine that an LEA complies with
[MOE] for purposes of establishing the LEA’s eligibility
for an award for a fiscal year if the LEA budgets, for
the education of CWDs, at least the same total or per
capita amount from either of the following sources as
the LEA spent for that purpose for the same source
for the most recent prior year for which information
is available:
◦ (i) local only; (ii) State and local
(IDEA Regs Section 300.203(b)(1))
Brustein & Manasevit, PLLC
7
NPRM – 300.203(a)

Compliance standard. An LEA meets this
standard if it does not:
◦ Reduce from State and local, in total or per
capita, below preceding fiscal year;
◦ Reduce from local, in total or per capita,
below the year for which LEA met MOE
standard based on local only; or
◦ Reduce from local, in total or per capita,
below preceding fiscal year if the LEA has not
previously met the MOE compliance standard
based on local funds only
Brustein & Manasevit, PLLC
8
NPRM – 300.203(b)

Eligibility standard. The amount of local funds
an LEA budgets for CWDs is at least the
same, in total or per capita, as the amount it
spent for that purpose in the most recent
fiscal year for which information is available
and the LEA met MOE compliance standard
based on local funds only
◦ If an LEA has not previously met MOE based on
local funds only, then budget the amount spent
from local funds in the most recent fiscal year for
which information is available
Brustein & Manasevit, PLLC
9
NPRM – 300.203(c)

Subsequent years. If LEA fails to meet
MOE, level of expenditures required is
the amount that would have been
required in the absence of that failure and
not the LEA’s reduced level of
expenditures.
Boundy Letter (April 2012),
overturning East letter (June 2011)
Brustein & Manasevit, PLLC
10
NPRM – 300.203(d)

Consequence of failure to maintain effort. If
LEA fails to meet MOE, the SEA is liable
in a recovery action to return to ED, using
non-federal funds, an amount equal to the
amount by which the LEA failed to
maintain its level of expenditures.
Brustein & Manasevit, PLLC
11
Fiscal year
(actual
expenditures) Local funds
State funds
State and
local funds
Covering SY
2006-2007
190
300
* 110
Covering SY
2007-2008
70
210
* 280
Covering SY
2008-2009
40
230
* 270
Covering SY
2009-2010
40
240
* 280
Covering SY
2010-2011
60
220
* 280
Covering SY
2011-2012
* 80
150
230
Covering SY
2012-2013
* 75
160
235
Reductions in
Expenditures
pursuant to §
300.204 or §
300.205
20 reduction
permissible
under §
300.204(a).
10 reduction
permissible
under §
300.204(c).
5 reduction
permissible
under § 300.205.
Brustein & Manasevit, PLLC
12
IDEA SUPPLEMENT
NOT SUPPLANT
Brustein & Manasevit, PLLC
13
SEA Supplement Not Supplant
Part B funds must be used to supplement and increase
the level of Federal, State and local funds expended for
special education and related services provided to
children with disabilities, and in no case supplant those
Federal, State and local funds.
• A State may use funds it retains for State admin and other
State-level activities without regard to the prohibition on
supplanting other funds
•
34 CFR 300.164
Brustein & Manasevit, PLLC
14
LEA Supplement Not Supplant
•
Part B funds must be used to supplement State, local
and other Federal funds (used for providing services
to children with disabilities). 34 CFR 300.202.
•
If LEA meets MOE, then LEA meets supplement not
supplant requirements
• No particular cost test
• ARRA Guidance, April 2009
Brustein & Manasevit, PLLC
15
OMB Circular A-133
Compliance Supplement
Auditors presume supplanting occurs if federal funds
were used to provide services** . . .
1.
Required to be made available under other federal,
State, or local laws
2.
Paid for with non-federal funds in prior year
3.
Same service to non-Title I students with
State/local funds
**Note that the Compliance Supplement states that
these provisions do not apply to IDEA!
Brustein & Manasevit, PLLC
16
LEA Supplement Not Supplant (cont.)
•
Notwithstanding 300.202 (SNS), 300.203 (MOE), and
300.162 (Commingling), funds provided to an LEA
may be used for:
• Services and aids that also benefit nondisabled
children
• Early intervening services
• High cost special education and related
services
34 CFR 300.208
Brustein & Manasevit, PLLC
17
OSEP Policy letter

MN DOE, January 30, 2013
◦ “The district would be required to
demonstrate that the Federal IDEA, Part B
funds they are requesting to be used for CEIS
supplement and do not supplant existing
State, local and other federal funds, including
ESEA funds, the district is using for [its
program].”
 Citing 34 CFR 300.202.
Brustein & Manasevit, PLLC
18
CEIS and Supplement Not Supplant

CEIS must supplement any ESEA activities or services.
34 CFR 300.226(e)

Model example:
1. CEIS and local funds serve total population – CEIS for eligible
CEIS students
2.
Title I provides Response to Intervention to Title I
students and CEIS supplements
Brustein & Manasevit, PLLC
19
Supplement Not Supplant (cont.)

IDEA, Part B funds must be used to supplement and not supplant
State, local, and other Federal funds.
Exceptions to SNS
State Administrative Set-Aside
IDEA Regs § 300.704(d)
Other State-Level Activities Set-Aside
IDEA Regs § 300.704(d)
Equitable Services (reverse supplement not
supplant)
IDEA Regs § 300.133(d)
Services and aids that also benefit
nondisabled children
IDEA Regs §
300.208(a)(1)
Early Intervening Services
IDEA Regs §
300.208(a)(2)
High Cost Fund
IDEA Regs §
300.208(a)(3)
Schoolwide Funds (only amount
consolidated)
IDEA Regs § 300.206(a)
Brustein & Manasevit, PLLC
20
Use of Funds
Use of IDEA Funds
OSEP Policy Letter, WI March 2013
 To what extent can IDEA be used to
support personnel that work with
students who are not students with
disabilities?
Brustein & Manasevit, PLLC
22
Use of IDEA Funds
OSEP Policy Letter, WI March 2013

“IDEA, Part B funds may not be used for non-special
education instruction in the general education
classroom, instructional materials for use with nondisabled children, or for professional development of
general education teachers not related to meeting the
needs of children with disabilities, subject to two
exceptions:”
◦ CEIS set-aside, 34 CFR 300.226
◦ Consolidated in schoolwide school, 34 CFR 300.206
Brustein & Manasevit, PLLC
23
Use of IDEA Funds
OSEP Policy Letter, WI March 2013

Can Sped Teacher provide interventions to small group
of students with and without disabilities?
◦ Yes, if teacher must prepare the lesson/provide services to
SWDs, other nondisabled students may attend the lesson
and benefit from those services,
BUT
◦ If fully funded by IDEA, Part B, teacher cannot grade papers,
meet with parents or perform any other functions with
nondisabled students
34 CFR 300.208(a)
Brustein & Manasevit, PLLC
24
Use of IDEA Funds
OSEP Policy Letter, WI March 2013

Can Sped Teacher provide interventions as part of RTI
to small group of students solely without disabilities?
◦ NO, teacher funded with IDEA, Part B funds cannot serve
small group of students without disabilities.

Can Sped Teacher co-teach in an inclusion classroom
with general ed teacher and have equal responsibility for
students with and without disabilities?
◦ Determined on case by case basis, however teacher funded with
IDEA, Part B cannot perform functions beyond providing
specialized instruction and related services.
Brustein & Manasevit, PLLC
25
Use of IDEA Funds
OSEP Policy Letter, WI March 2013

Can Sped teacher work on child find team that
determines whether to refer students for sped services?
◦ Yes, child find activities may be funded with IDEA, Part B.

Can Sped Teacher assist teachers working with
nondisabled students regarding interventions?
◦ To the extent the assistance is considered PD for general
ed teacher to identify, locate and evaluate SWDs.
Otherwise, cannot assist in interventions for general ed
students.
Brustein & Manasevit, PLLC
26
Use of IDEA Funds
OSEP Policy Letter, MN January 2013

Can CEIS funds be used to support students with
disabilities?
◦ No, CEIS cannot support services to children with
disabilities or nondisabled students who do not need
additional academic and behavioral support to succeed
in a general education environment
◦ 34 CFR 300.226
Brustein & Manasevit, PLLC
27
DISPUTE RESOLUTION
Brustein & Manasevit, PLLC
28
Mediation

Available for matters arising prior to the filing of due
process complaint
◦ Not limited to issues raised in due process hearing; may
mediate any issues in dispute

Mediation is CONFIDENTIAL!

LEA cannot require mediation
◦ SEA responsible for selecting mediators, and it must be on a
random, rotational, or other impartial basis
◦ “[ED does] not believe that a hearing officer can order that
the parties to a due process complaint engage in mediation.”
(71 Fed. Reg. 46694 (Aug. 14, 2006)).
Brustein & Manasevit, PLLC
29
State Complaints

Each SEA must establish procedures for filing
and resolving state complaints.
◦ 60 day time limit
◦ Independent on-site investigation
◦ Provide complainant with opportunity to submit
additional information
◦ Provide public agency with opportunity to respond
◦ If a parent filed the complaint - Provide
opportunity for mediation
◦ Independent, written decision
◦ Remedies and corrective actions for
noncompliance found
Brustein & Manasevit, PLLC
30
Due Process Complaints

Due Process Complaints:
◦ Allow parents/students to enforce the rights
guaranteed under the IDEA.
◦ Relate to refusal or denial to initiate or change
the identification, evaluation, educational
placement of the provision of a free appropriate
public education (FAPE).
◦ May be filed by a parent, student, or LEA.
◦ The alleged violation must have occurred within 2
years of the date of the complaint.
 Some States have a 1 year statute of limitations.
◦ Each SEA must establish and maintain due
process procedures.
Brustein & Manasevit, PLLC
31
OSEP Memo and Q&A
Dispute Resolution, July 2013

Under what circumstances do the Part B
regulations prevent public agencies from
using mediation?
◦ Parent’s refusal or failure to respond to consent
to the initial provision of sped and related
services
◦ Parent’s revocation of consent for continued
provision of sped and related services
◦ Parent’s refusal or failure to respond to consent
to initial evaluation or reevaluation of child who
is home schooled or parentally placed in private
school at parental expense
Brustein & Manasevit, PLLC
32
OSEP Memo and Q&A
Dispute Resolution, July 2013

May States use IDEA funds for
recruitment and training of mediators?
◦ Yes, States must bear the cost of mediation,
cannot require LEAs to use Part B funds to
pay for mediation

Is mediation confidential?
◦ Discussions in mediation are confidential;
agreements may or may not be confidential
Brustein & Manasevit, PLLC
33
OSEP Memo and Q&A
Dispute Resolution, July 2013

If parent wants to challenge LEA’s
eligibility determination, can parent file
State complaint?
◦ Yes, SEA may not refuse to resolve a State
complaint even if the complaint concerns a
matter that could also be resolved through
due process

Can you appeal a State complaint?
◦ Regs are silent; permitted if State sets up
appeal process
Brustein & Manasevit, PLLC
34
OSEP Memo and Q&A
Dispute Resolution, July 2013


When can LEA use due process procedures to
override parent’s refusal to consent?
◦ Initial evaluations and reevaluations
If parent wants an independent educational
evaluation and LEA believes its evaluation is
appropriate, must the LEA file due process
complaint?
◦ Yes, the LEA must “without unnecessary delay” file
a due process complaint or pay for the IEE
Brustein & Manasevit, PLLC
35
OSEP Memo and Q&A
Dispute Resolution, July 2013

If both parents have legal authority to
make educational decisions and one parent
revokes consent for provision of sped and
related services, may the other parent file
due process complaint to override the
revocation of consent?
◦ No, the LEA must accept the one parent’s
revocation of consent.
Brustein & Manasevit, PLLC
36
OSEP Policy Letter, Mtn Plains Regional
Resource Center, Oct. 2008
Can an SEA require an LEA to correct
individual student IEPs that the SEA
determined noncompliant during
monitoring activities?
And
 Can an SEA require an IEP team meeting
be reconvened if procedures were not
followed?

◦ Yes, per SEA’s general supervisory
responsibility (34 CFR 300.149)
Brustein & Manasevit, PLLC
37
SUBGRANTS
Brustein & Manasevit, PLLC
38
SEA Distribution of Funds
SEA’s Award
§300.700 /
§ 300.800
State
Administration
§ 300.704(a) /
§ 300.800
Other State-level
Activities
§ 300.704(b) /
§ 300.804

State Administration is Capped!
◦ FY 09: Same reservation as
FY 2004 or $800,000 (plus
rate of inflation)

Other State-level Activities are
Capped!
◦ Amount Equal to 10% of SEA
Allocation of FY 2006 (adjusted
cumulatively for inflation)
◦ No Reasonable Adjustments
LEA Flow-Through
Funds
§ 300.705 /
§ 300.815
Brustein & Manasevit, PLLC
39
LEA Distribution of Funds
LEA Base payments
◦ Section 611 (Grants to
States) – FY1999 data
◦ Section 619 (Preschool
Grants) – FY1997 data
 85% Population-based
◦ Relative numbers of
children enrolled in public
& private elementary &
secondary schools within
LEA’s jurisdiction
 15% Poverty-based
◦ Relative numbers of
children living in poverty
as determined by SEA

LEA Flow-Through
Funds § 300.705 /
§ 300.815
Base Payments
§ 300.705(b)(1)
Remaining Amount
85% Population
Based
§ 300.705(b)(3)(i)
15% Poverty Based
§ 300.705(b)(3)(ii)
Brustein & Manasevit, PLLC
40
OSEP Policy Letter, MN DOE,
February 2009

Can an SEA allocate funds to a “co-op” which
covers several participating districts?
◦ Yes, if co-op meets IDEA definition of “LEA”
 34 CFR 300.12

Can the “co-op” then subgrant funds to some
or all of the participating districts?
◦ No, “nothing in either IDEA or EDGAR allows a
subgrantee (an entity receiving funds from the
grantee) to further subgrant funds to other
entities, including member or participating districts
of a co-op”
Brustein & Manasevit, PLLC
41
Brustein & Manasevit, PLLC
42
Disclaimer
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.
Brustein & Manasevit, PLLC
43