equitable services: providing services to students in private schools

EQUITABLE SERVICES:PROVIDING SERVICES TO STUDENTS IN PRIVATE SCHOOLSJennifer S. Mauskapf, Esq. [email protected] Brustein & Manasevit, PLLCFall Forum 2013

OVERVIEW

ESEA Title IX, Uniform Provisions: §§ 9501-9506

*Governs equitable services under NINE NCLB Programs

Title I-A: § 1120 IDEA

20 USC § 1412(a)(10)(A) See also, IDEA Regs., §§ 300.130-300.144

Equitable Services Implementation Plan (ESIP)

Brustein & Manasevit, PLLC

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•General Concepts•Consultation•Fiscal Issues•Service Delivery

ESEA


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ESEA Programs with Equitable Participation Reqs. 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)


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GENERAL RULE

LEA must provide equitable services and benefits to eligible private school students, teachers, other educational personnel, and parents


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Services are Equitable when the LEA… 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


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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 decisionBrustein & Manasevit, PLLC

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Consultation must include… T1-A: 34 CFR 200.63T9: § 9501(c)(1)

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 How and when the LEA will make decisions about

the delivery of services Amount of funds available for services and how

determined Brustein & Manasevit, PLLC

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Documenting Consultation

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


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Disagreement Re: Third Party Providers 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


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Written Affirmation

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

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


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Right to File a 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; 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


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SEA Resolution of Complaints

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


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Equal Expenditure Guidelines (T9) 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.


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T9 Expenditures, cont.

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


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Equitability: Deriving AllocationGeneral Formula: Based on number of…

1. Private school students 2. From low-income families3. Who reside in Title I-participating public

school attendance areas


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Calculating Allocation for Instruction:

1. Rank public school areas: highest to lowest

2. Identify participating areas3. Calculate PPA for each area4. Calculate allocation amount for each area

Must include nonpublic low-income #

5. Reserve nonpublic amount PPA x # of nonpublic low-income in each

area


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Set-asides

Private school students also must get equitable share of some set-asides… Off the top for districtwide instruction *Off the top for parental involvement *Off the top for professional development

*Par. Inv. and Prof. Dev. for families and teachers of participating nonpublic students can be provided… In conjunction with the LEA or Independently


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Five Options for Calculating Poverty Data on Private School Students

1. Data from same source2. Survey, with extrapolation3. Comparable data from different source4. Proportionality5. Correlated measure


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Poverty Data, cont.

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


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Poverty Data: Guidance

Preferred method: Same source (FRPL) BUT – Legis. and Regs. say equally

available

May use >1 method Use comparable income levels No duplication


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Poverty Data: Collect Annually or Biennially

Purpose: to reduce burden

Subject to consultation

Not necessary to have uniform procedure for all private schools


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Additional T1-A/T9 Expenditure Considerations


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Distributing the Funds

Two options:1. Pooling:

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

programs2. School-by-School:

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 Brustein & Manasevit, PLLC

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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)


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Carryover

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… then carryover funds revert to regular program pot.

If 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?


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Eligibility for Services

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


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Selection Criteria

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


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Delivery and Provision of Services

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


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Examples

Instruction provided by LEA employees or third-party contractors

Extended-day services Family literacy Counseling Computer-assisted instruction Home tutoring Take-home computers


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Timing of Services

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


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§ 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


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Professional Development

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?


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ESEA Waivers Impact on Eq. Servs.?

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 RequirementBrustein & Manasevit, PLLC

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• Child Find• “Parentally Placed Private School Children”• Consultation• Proportionate Share

IDEA


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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


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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 schools 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


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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


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IDEA Consultation Requirements “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

childrenBrustein & Manasevit, PLLC

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IDEA Consultation Requirements (cont.) 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 of special education & related services How, 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


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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


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Private School Officials’ Right to Submit State Complaint 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


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Proportionate Share


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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


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Calculating the Proportionate Share

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 Parentally-Placed CWDs


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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).


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Provision of Services


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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


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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


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Equitable Services Implementation Plan (ESIP)


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Equitable Services Implementation Plan (ESIP) Announced March 2013 ED effort to improve implementation of ESEA

and IDEA equitable services via Outreach, Promoting and Encouraging Promising Practices, Technical Assistance, and Monitoring

Series of Webinars Available http://www2.ed.gov/about/offices/list/oii/nonpublic/esip.h

tml


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GUIDANCE

Title IX, Part E Guidance (revised March 2009) www.ed.gov/policy/elsec/guid/equitableserguidance.doc

Title I Equitable Services 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?


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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. 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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equitable services: providing services to students in private schools

Documents

determinedbrustein manasevit

parentsbrustein manasevit

participateprovides

identifiedwhat services

private schoolsjennifer

9501c1how students

equitable participation

educational programs