EQUITABLE SERVICES: PROVIDING SERVICES TO STUDENTS IN PRIVATE SCHOOLS Jennifer S. Mauskapf, Esq. Brustein & Manasevit, PLLC Fall Forum 2013

OVERVIEW  ESEA  Title IX, Uniform Provisions: §§ *Governs equitable services under NINE NCLB Programs  Title I-A: § 1120  IDEA  20 USC § 1412(a)(10)(A)  See also, IDEA Regs., §§  Equitable Services Implementation Plan (ESIP) Brustein & Manasevit, PLLC 2

General Concepts Consultation Fiscal Issues Service Delivery ESEA Brustein & Manasevit, PLLC 3

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) Brustein & Manasevit, PLLC 4

GENERAL RULE  LEA must provide equitable services and benefits to eligible private school students, teachers, other educational personnel, and parents Brustein & Manasevit, PLLC 5

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 Brustein & Manasevit, PLLC 6

Consultation Brustein & Manasevit, PLLC 7

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 Brustein & Manasevit, PLLC 8

Consultation must include… T1-A: 34 CFR T9: § 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 9

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 Brustein & Manasevit, PLLC 10

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 Brustein & Manasevit, PLLC 11

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 Brustein & Manasevit, PLLC 12

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 Brustein & Manasevit, PLLC 13

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. Brustein & Manasevit, PLLC 14

Expenditures under Title IX Brustein & Manasevit, PLLC 15

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. Brustein & Manasevit, PLLC 16

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 Brustein & Manasevit, PLLC 17

Deriving the Allocation, TI-A Brustein & Manasevit, PLLC 18

Equitability: Deriving Allocation General Formula:  Based on number of… 1. Private school students 2. From low-income families 3. Who reside in Title I-participating public school attendance areas Brustein & Manasevit, PLLC 19

Calculating Allocation for Instruction: 1. Rank public school areas: highest to lowest 2. Identify participating areas 3. Calculate PPA for each area 4. Calculate allocation amount for each area  Must include nonpublic low-income # 5. Reserve nonpublic amount  PPA x # of nonpublic low-income in each area Brustein & Manasevit, PLLC 20

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 Brustein & Manasevit, PLLC 21

Five Options for Calculating Poverty Data on Private School Students 1. Data from same source 2. Survey, with extrapolation 3. Comparable data from different source 4. Proportionality 5. Correlated measure Brustein & Manasevit, PLLC 22

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 Brustein & Manasevit, PLLC 23

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 Brustein & Manasevit, PLLC 24

Poverty Data: Collect Annually or Biennially  Purpose: to reduce burden  Subject to consultation  Not necessary to have uniform procedure for all private schools Brustein & Manasevit, PLLC 25

Additional T1-A/T9 Expenditure Considerations Brustein & Manasevit, PLLC 26

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 programs 2. 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 27

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) Brustein & Manasevit, PLLC 28

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. Brustein & Manasevit, PLLC 29

Who gets served, how, and when? Brustein & Manasevit, PLLC 30

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 Brustein & Manasevit, PLLC 31

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 Brustein & Manasevit, PLLC 32

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 Brustein & Manasevit, PLLC 33

Examples  Instruction provided by LEA employees or third- party contractors  Extended-day services  Family literacy  Counseling  Computer-assisted instruction  Home tutoring  Take-home computers Brustein & Manasevit, PLLC 34

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 Brustein & Manasevit, PLLC 35

§ 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 Brustein & Manasevit, PLLC 36

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 Brustein & Manasevit, PLLC 37

ESEA Flexibility Waivers Impact? Brustein & Manasevit, PLLC 38

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 Requirement Brustein & Manasevit, PLLC 39

Child Find “Parentally Placed Private School Children” Consultation Proportionate Share IDEA Brustein & Manasevit, PLLC 40

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 Brustein & Manasevit, PLLC 41

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 (a)(2006)   LEA must identify all “parentally placed private school children” with disabilities Brustein & Manasevit, PLLC 42

Parentally-Placed Private School Children w/ Disabilities 34 CFR §§ –  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 Brustein & Manasevit, PLLC 43

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 children Brustein & Manasevit, PLLC 44

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 Brustein & Manasevit, PLLC 45

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 Brustein & Manasevit, PLLC 46

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 Brustein & Manasevit, PLLC 47

Proportionate Share Brustein & Manasevit, PLLC 48

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 § (Appendix B to regulations)  How are numbers of parentally-placed private school children with disabilities derived?  LEA determines the number, after consultation requirements Brustein & Manasevit, PLLC 49

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 Brustein & Manasevit, PLLC 50

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. § (a)(3). Brustein & Manasevit, PLLC 51

Provision of Services Brustein & Manasevit, PLLC 52

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 Brustein & Manasevit, PLLC 53

Services Plan  34 CFR §§ (b) and (b)  To the extent appropriate, must be developed, reviewed, and revised in accordance with the IEP requirements in 34 CFR §§  Review periodically and revise as necessary  Parent participation in review and development Brustein & Manasevit, PLLC 54

Equitable Services Implementation Plan (ESIP) Brustein & Manasevit, PLLC 55

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  Brustein & Manasevit, PLLC 56

GUIDANCE  Title IX, Part E Guidance (revised March 2009)  Title I Equitable Services Resource Toolkit:  Title I Services to Eligible Private School Students Guidance:  Title I Fiscal Guidance:  ONPE’s IDEA Booklet: Brustein & Manasevit, PLLC 57

Questions? Brustein & Manasevit, PLLC 58

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. Brustein & Manasevit, PLLC 59