IDEA Equitable Services: ServiNG Parentally Placed Private School Students with Disabilities

1. IDEA Equitable Services:ServiNG Parentally Placed Private School Students with Disabilities Jennifer S. Mauskapf, Esq. jmauskapf@bruman.com Brustein & Manasevit, PLLC Spring 2012 Forum

2. OVERVIEW • Child Find • Consultation • Complaint Processes • Proportionate Share • Provision of Services • Q & A

3. Child Find What is Child Find? Parentally Placed Private School Children

4. 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

5. 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

6. 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

7. Consultation

8. IDEA Consultation Requirements • “Timely and meaningful” consultation • Who? • Private school representatives • Representatives of parents of parentally-placed private school children with disabilities

9. 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

10. 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?

11. 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

12. 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

13. Complaint Processes

14. 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

15. 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.

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

18. Calculating the Proportionate Share

19. 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).

20. 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)

21. 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?

22. Calculate the Proportionate Share (cont.) • REMEMBER: Calculation based on students eligible, not just those participating.

23. 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.

24. Provision of Services

25. 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

26. § 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.

27. 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

28. 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

29. GUIDANCE • 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

30. 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

31. Questions?

32. 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.