equitable services: providing services to students in private schools
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EQUITABLE SERVICES:PROVIDING SERVICES TO STUDENTS IN PRIVATE SCHOOLSJennifer S. Mauskapf, Esq. jmauskapf@bruman.com 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)
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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
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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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