1. IDEA, Part B Hot Topics and Updates Bonnie L. Graham, Esq. bgraham@bruman.com Jennifer B. Segal, Esq. jsegal@bruman.com Brustein & Manasevit, PLLC Fall Forum 2013

2. Agenda - Maintenance of Effort - Supplement Not Supplant - Use of Funds - Dispute Resolution - Subgrant 2Brustein & Manasevit, PLLC

3. IDEA, PART B STATE AND LOCAL MAINTENANCE OF EFFORT What??? Keep It Up! 3Brustein & Manasevit, PLLC

4. 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!! 4 Brustein & Manasevit, PLLC

5. 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! 5 Brustein & Manasevit, PLLC

6. 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)) 6 Brustein & Manasevit, PLLC

7. 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)) 7 Brustein & Manasevit, PLLC

8. 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, PLLC8

9. 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, PLLC9

10. 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, PLLC10

11. 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, PLLC11

12. Fiscal year (actual expenditures)Local fundsState funds State and local funds Reductions in Expenditures pursuant to § 300.204 or § 300.205 Covering SY 2006-2007* 110190300 Covering SY 2007-200870210* 280 20 reduction permissible under § 300.204(a). Covering SY 2008-200940230* 270 10 reduction permissible under § 300.204(c). Covering SY 2009-201040240* 280 Covering SY 2010-201160220* 280 Covering SY 2011-2012* 80150230 Covering SY 2012-2013* 75160235 5 reduction permissible under § 300.205. Brustein & Manasevit, PLLC12

13. IDEA SUPPLEMENT NOT SUPPLANT 13Brustein & Manasevit, PLLC

14. 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 14Brustein & Manasevit, PLLC

15. 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 15Brustein & Manasevit, PLLC

16. OMB Circular A-133 Compliance Supplement Brustein & Manasevit, PLLC16 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!

17. 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 17Brustein & Manasevit, PLLC

18. 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, PLLC18

19. 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 19Brustein & Manasevit, PLLC

20. Supplement Not Supplant (cont.) 20 IDEA, Part B funds must be used to supplement and not supplant State, local, and other Federal funds. Brustein & Manasevit, PLLC

21. Use of Funds

22. 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, PLLC22

23. 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 non- disabled 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, PLLC23

24. 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, PLLC24

25. 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, PLLC25

26. 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, PLLC26

27. 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, PLLC27

28. DISPUTE RESOLUTION Brustein & Manasevit, PLLC28

29. 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)). 29Brustein & Manasevit, PLLC

30. 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 30Brustein & Manasevit, PLLC

31. 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. 31Brustein & Manasevit, PLLC

32. 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, PLLC32

33. 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, PLLC33

34. 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, PLLC34

35. 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, PLLC35

36. 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, PLLC36

37. 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, PLLC37

38. SUBGRANTS Brustein & Manasevit, PLLC38

39. SEA Distribution of Funds 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 SEA’s Award §300.700 / § 300.800 State Administration § 300.704(a) / § 300.800 Other State-level Activities § 300.704(b) / § 300.804 LEA Flow-Through Funds § 300.705 / § 300.815 39Brustein & Manasevit, PLLC

40. 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) 40Brustein & Manasevit, PLLC

41. 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, PLLC41

42. Brustein & Manasevit, PLLC42

43. 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 Disclaimer 43