1. EQUITABLE SERVICES: PROVIDING SERVICES TO STUDENTS IN PRIVATE SCHOOLS Jennifer S. Mauskapf, Esq. jmauskapf@bruman.com Brustein & Manasevit, PLLC Fall Forum 2011

2. APPLICABLE STATUTES  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)  See also, IDEA Regs., §§ 300.130-300.144 2

3. General Concepts Consultation Fiscal Issues Service Delivery ESEA 3

4. NCLB Programs w/Eq. Part. 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) 4

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

6. 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 6

7. Consultation 7

8. 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 8

9. Consultation must include… T1-A: 34 CFR 200.63 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  Amount of funds available for services and how determined  How and when the LEA will make decisions about the delivery of services 9

10. 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 10

11. 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 11

12. 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 12

13. 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 13

14. 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. 14

15. Expenditures under Title IX 15

16. 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. 16

17. 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 17

18. Deriving the Allocation, TI-A 18

19. 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 19

20. 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 20

21. Set-asides Private school students also must get equitable share of some set-asides…  Off the top for districtwide instruction  *Off top for parental involvement  *Off 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 21

22. 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 22

23. 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 23

24. 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 24

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

26. Additional T1-A/T9 Expenditure Considerations 26

27. 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 27

28. 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) 28

29. 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. 29

30. Who gets served, how, and when? 30

31. 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 31

32. 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 32

33. 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 33

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

35. 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 35

36. § 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 36

37. 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 37

38. ESEA Flexibility Waivers Impact? 38

39. 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 39

40. Child Find “Parentally Placed Private School Children” Consultation Proportionate Share IDEA 40

41. 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 41

42. 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 42

43. 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 43

44. 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 44

45. 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 45

46. 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 46

47. 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 47

48. GUIDANCE 48  Title IX, Part E Guidance (Revised, March 2009!) www.ed.gov/policy/elsec/guid/equitableserguidance.doc www.ed.gov/policy/elsec/guid/equitableserguidance.doc  Ensuring Eq. Servs. to Private School Children: A Title I Resource Toolkit: http://www.ed.gov/programs/titleiparta/ps/titleitoolkit.pdfhttp://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 http://www.ed.gov/programs/titleiparta/psguidance.doc  Title I Fiscal Guidance: http://www.ed.gov/programs/titleiparta/fiscalguid.pdf http://www.ed.gov/programs/titleiparta/fiscalguid.pdf  ONPE’s IDEA Booklet: http://www.ed.gov/admins/lead/speced/privateschools/index.html http://www.ed.gov/admins/lead/speced/privateschools/index.html

49. Questions? 49

50. 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. 50