Transcript Slide 1

EQUITABLE SERVICES:
PROVIDING SERVICES TO
STUDENTS IN PRIVATE SCHOOLS
Jennifer S. Mauskapf, Esq.
[email protected]
Brustein & Manasevit, PLLC
Fall Forum 2011
APPLICABLE STATUTES
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
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)
 See also, IDEA Regs., §§ 300.130-300.144
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ESEA
General Concepts
•Consultation
•Fiscal Issues
•Service Delivery
•
NCLB Programs w/Eq. Part. Reqs.
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Title I, Part A
Reading First (T1-B-1)
Even Start Family Literacy (T1-B-3)
Migratory Education Program (T1-C)
Title II, Part A
Mathematics and Science Partnerships (T2-B)
Enhancing Education Through Technology (T2-D)
English Language Acquisition, Language Enhancement, and Academic
Achievement (T3-A)
Safe and Drug-Free Schools and Communities (T4-A)
21st Century Community Learning Centers (T4-B)
Innovative Programs (T5-A)
Gifted and Talented Students (T5-D-6)
GENERAL RULE
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
LEA must provide equitable services and
benefits to eligible private school students,
teachers, other educational personnel,
and parents
Services are Equitable when the LEA…
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Spends an equal amount of funds to serve similar public and private
school students
Provides services and benefits that are equitable in comparison to
the services and benefits provided to public school students
Addresses the specific needs and educational programs on public
and private school students on a comparable basis
Provides, in the aggregate, approximately the same amount of
services
Provides equal opportunities to participate
Provides services that meet private school’s specific needs
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Consultation
CONSULTATION:
Must be “Timely and Meaningful”
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
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
Consultation must include…
T1-A: 34 CFR 200.63
T9: § 9501(c)(1)
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How students’ needs will be identified
What services will be offered
How, where, and by whom the services will be provided
How the services will be assessed and how the results of the
assessment will be used to improve services
The size and scope of services
Amount of funds available for services and how determined
How and when the LEA will make decisions about the delivery
of services
Documenting Consultation
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
Retain documentation that shows:
 Informed
private school officials of available federal
programs
 Engaged in timely and meaningful consultation
 Identified private school students’ needs
 Allocated sufficient funds for private school students
 Provided equitable services and benefits
 Evaluated programs and services for effectiveness
 Adequately addressed problems & complaints
Disagreement Re: Third Party Providers
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

Thorough consideration of private school officials’
views required
If LEA disagrees with private school officials re:
provision of services through a contract  must
provide a written explanation of the reasons why
LEA has chosen not to use a contractor
Written Affirmation
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
LEAs must obtain written affirmation from private
school officials stating timely and meaningful
consultation occurred
Signed by officials from each school with participating
children, or representative
 Note Timing
 Required by Title I-A, but not Title IX
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Send to SEA and maintain in LEA’s files
Example in Guidance
T9 Note: Guidance (D-9) encourages use of ‘sign-off’
forms although not statutorily required
Right to File a Complaint
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
Private School Official has the right to complain to
the SEA that the LEA…
 Did
not engage in consultation that was meaningful and
timely;
 Did not give due consideration to the views of the
private school official; or
 Did not provide fair and equitable services to private
school children.

Private School Official provides basis for complaint
to SEA; LEA will be required to forward the
appropriate documentation to the SEA
SEA Resolution of Complaints
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

SEA must have written procedures for receiving,
investigating, and resolving complaints from parents,
teachers, or other individuals and organizations.
SEA decisions may be appealed to the U.S.
Secretary of Education.
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Expenditures under Title IX
Equal Expenditure Guidelines (T9)
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
Many LEAs calculate equal expenditures strictly on the
basis of the relative enrollments of public and private
school students
This is not required!
 Assumes the numbers accurately reflect the relative needs
of students and teachers in public and private schools.


LEAs may use other factors relating to need!

Both the number and the educational needs of the public
and private school students must be taken into account.
T9 Expenditures, cont.
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
Must consult with private school officials on the
method for determining equal expenditures
 Resulting
methodology should reasonably reflect the
relative numbers and educational needs of the public
and private school students

Example of how an LEA may provide private school
officials with information about funding allocations
for services and per pupil expenditures
 T9
Guidance, J-14: Sample Funding Allocations for
Services Notification Form
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Deriving the Allocation, TI-A
Equitability: Deriving Allocation
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General Formula:
 Based on number of…
1.
2.
3.
Private school students
From low-income families
Who reside in Title I-participating public school
attendance areas
Calculating Allocation for Instruction:
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1.
2.
3.
4.
Rank public school areas: highest to lowest
Identify participating areas
Calculate PPA for each area
Calculate allocation amount for each area

5.
Must include nonpublic low-income #
Reserve nonpublic amount

PPA x # of nonpublic low-income in each area
Set-asides
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Private school students also must get equitable
share of some set-asides…
Off the top for districtwide instruction
 *Off top for parental involvement
 *Off top for professional development
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*Par. Inv. and Prof. Dev. for families and teachers of
participating nonpublic students can be provided…
In conjunction with the LEA or
 Independently

Five Options for Calculating Poverty Data
on Private School Students
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1.
2.
3.
4.
5.
Data from same source
Survey, with extrapolation
Comparable data from different source
Proportionality
Correlated measure
Poverty Data, cont.
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
Proportionality
 Applying
low-income % of each public school
attendance area to number of private school children
who reside in that area

Correlated measure
 Determining
the proportional relationship between two
sources and applying that ratio to known source or
private school students
Poverty Data: Guidance
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
Preferred method: Same source (FRPL)
 BUT

– Legis. and Regs. say equally available
May use >1 method
 Use
comparable income levels
 No duplication
Poverty Data:
Collect Annually or Biennially
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Purpose: to reduce burden
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Subject to consultation
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Not necessary to have uniform procedure for all
private schools
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Additional T1-A/T9
Expenditure Considerations
Distributing the Funds
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
Two options:
Pooling:
1.


T1-A: Pool all the funds to use for students with greatest
educational need anywhere in LEA
T9: Pool funds for the 2+ private schools interested in this
option, use in some or all of these schools

May NOT pool funds across multiple NCLB programs
School-by-School:
2.
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
T1-A: Funds follow child to private school for educationally
needy child in that school
T9: Based on number of children enrolled in the school
Administrative Costs
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
Off the top!!
 Before
public and private school allocations are
calculated

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LEA administrative costs for public and private
school program
Third party provider (contractors/private
companies) administrative cost (including fee or
profit)
Carryover
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If the LEA does not use all funds designated for service
to private school students, how is money treated? 
IT DEPENDS.
 If
LEA provided equitable services in first year…

 If
then carryover funds revert to regular program pot.
LEA did not provide equitable services,

then must earmark funds for services to private school
students in the carryover year.
  Use in Year 2, in addition to entire amount of new allocation.
 EITHER
WAY: Funds remain in control of LEA.
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Who gets served, how, and when?
Eligibility for Services
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Title I-A
1.
Reside in participating public school attendance area;
AND
2.
Meet §1115 criteria
 Educationally
Needy
 Status eligibility: homeless, Head Start, ERF, etc.
Title 9
1.
Enrolled in nonprofit private school located in LEA
2.
Meet specific eligibility/participation criteria of given
program
Selection Criteria
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
Determined by LEA, in consultation

Multiple, educationally-related objective
 Achievement

tests, teacher referrals, grades
Poverty is NOT a criterion
# of low-income
≠
# eligible for service
Delivery and Provision of Services
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Directly, through private company, or another LEA
May be on-site at private school, with safeguards
Neutral, secular and non-ideological
Benefit of students, not private school
LEA controls!
 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
Examples
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Instruction provided by LEA employees or thirdparty contractors
Extended-day services
Family literacy
Counseling
Computer-assisted instruction
Home tutoring
Take-home computers
Timing of Services
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
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To begin at same time as public program
If not  LEA should provide additional services
during the remainder of the year and carry over
any unspent funds
§ 1119 Staff Qualifications
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
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
Professional Development
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For private school teachers of participants
Not for LEA teachers of participants
Consult over appropriate services
Private school officials cannot arrange, then submit
invoice to LEA
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ESEA Flexibility Waivers Impact?
ESEA Waivers Impact on Eq. Servs.?
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

Equitable Services req. is NON-WAIVERABLE
Waivers could impact in terms of ALLOCATIONS
§
1116 School Improvement (20% Choice/SES)*
 § 1116 LEA Improvement (10% prof. dev.)*
 *Not
applicable to equitable participation
 *Impact of Waiver on nonpublic allocation?  will depend
upon state accountability system
 Transferability
 Rural

LEA Flexibility
Note: Waiver Consultation Requirement
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IDEA
•
•
•
•
Child Find
“Parentally Placed Private School Children”
Consultation
Proportionate Share
What is Child Find?
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
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
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“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
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
Who are these children?
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
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Right to “equitable participation services” in IDEA Part B
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Voluntarily enrolled by their parents in private schools
Not referred to private schools to receive FAPE
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
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LEA makes final decisions on services – type, how, where, by whom
“Services Plan” vs. IEP
“Must Spend”  Special carry-over rule
IDEA Consultation Requirements
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

“Timely and meaningful” consultation
Who?
 Private
school representatives
 Representatives of parents of parentally-placed
private school children with disabilities

About what?
 Child
find process
 Proportionate share of Part B funds
 How
calculated (Appendix B)
 Crucial to have accurate count of eligible children
IDEA Consultation Requirements (cont.)
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
About What? (cont.)
 Consultation
Process
 How
consultation will operate throughout the year to ensure
parentally-placed private school children with disabilities
can meaningfully participate?
 Provision
 How,
of special education & related services
where, by whom
 Types of services – direct or alternative delivery mechanism
 How apportioned if funds insufficient for all
 How and when decisions will be made
Proof of Consultation
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
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
Private School Officials’
Right to Submit State Complaint
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
Complaint to SEA
 Not
necessarily formal state complaint procedures
 Similar to right of complaint by private schools under
NCLB

Basis of complaint
 Consultation
was not “meaningful and timely”; and/or
 SEA did not give due consideration to views of private
school officials
GUIDANCE
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
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Title IX, Part E Guidance (Revised, March 2009!)
www.ed.gov/policy/elsec/guid/equitableserguidance.doc
Ensuring Eq. Servs. to Private School Children: A Title I Resource
Toolkit: http://www.ed.gov/programs/titleiparta/ps/titleitoolkit.pdf
Title I Services to Eligible Private School Students Guidance:
http://www.ed.gov/programs/titleiparta/psguidance.doc
Title I Fiscal Guidance:
http://www.ed.gov/programs/titleiparta/fiscalguid.pdf
ONPE’s IDEA Booklet:
http://www.ed.gov/admins/lead/speced/privateschools/index.html
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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. 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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