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IDEA EQUITABLE SERVICES: SERVING PARENTALLY PLACED PRIVATE SCHOOL STUDENTS WITH DISABILITIES Jennifer S. Mauskapf, Esq. [email protected] Brustein & Manasevit, PLLC Spring 2012 Forum OVERVIEW 2 Child Find Consultation Complaint Processes Proportionate Share Provision of Services Q & A 3 Child Find What is Child Find? •Parentally Placed Private School Children • What is Child Find? 4 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 Child Find and Private Schools 5 “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 Parentally-Placed Private School Children w/ Disabilities 34 CFR §§ 300.130 – 300.144 6 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 7 Consultation IDEA Consultation Requirements 8 “Timely and meaningful” consultation Who? Private school representatives Representatives of parents of parentally-placed private school children with disabilities CONSULTATION: Must be “Timely and Meaningful” 9 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 Required Consultation Topics 10 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? Required Consultation Topics (cont.) 11 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 Proof of Consultation 12 Written explanation by LEA regarding services Signed, “written affirmation” from representatives of participating private schools after timely and meaningful consultation has occurred Must include explanations where LEA disagrees with views of private school representatives Attendance/Sign-in sheet NOT sufficient If no affirmation provided within “reasonable period of time” after consultation, forward to SEA documentation of consultation process 13 Complaint Processes Private School Officials’ Right to Submit State Complaint 14 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 Due Process 15 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. 16 Proportionate Share 17 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 Calculating the Proportionate Share 18 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 ParentallyPlaced CWDs Additional Considerations 19 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). Administrative Costs 20 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) Calculate the Proportionate Share 21 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? Calculate the Proportionate Share (cont.) 22 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% REMEMBER: Calculation based on students eligible, not just those participating. Carryover 23 “…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. 24 Provision of Services Delivery and Provision of Services 25 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 § 1119 Staff Qualifications 26 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. Services Plan 27 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 LEA Maintains Control 28 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 GUIDANCE 29 OSEP’s IDEA Website http://idea.ed.gov The Right IDEA OSEP’s New Technical Assistance and Guidance Website http://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%2CQaC orner%2C1%2C ONPE’s IDEA Booklet: http://www.ed.gov/admins/lead/speced/privateschools/index.html Equitable Services Citations 30 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 USC § 1412(a)(10)(A)/IDEA § 612(a)(10)(A) See also IDEA Regs., §§ 300.130-300.144 20 31 Questions? 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. 32