ESEA EQUITABLE SERVICES: PROVIDING SERVICES TO STUDENTS IN PRIVATE SCHOOLS OVERVIEW ESEA IDEA. Equitable Services Implementation Plan (ESIP)

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1 EQUITABLE SERVICES: PROVIDING SERVICES TO STUDENTS IN PRIVATE SCHOOLS Jennifer S. Mauskapf, Esq. Fall Forum 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) 3 ESEA General Concepts Consultation Fiscal Issues Service Delivery 1

2 4 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) GENERAL RULE 5 LEA must provide equitable services and benefits to eligible private school students, teachers, other educational personnel, and parents 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 2

3 7 Consultation 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 Consultation must include T1-A: 34 CFR T9: 9501(c)(1) 9 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 3

4 Documenting Consultation 10 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 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 Written Affirmation 12 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 4

5 Right to File a Complaint 13 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 SEA Resolution of Complaints 14 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. 15 Expenditures under Title IX 5

6 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. T9 Expenditures, cont. 17 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 18 Deriving the Allocation, TI-A 6

7 Equitability: Deriving Allocation 19 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 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 Set-asides 21 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 7

8 Five Options for Calculating Poverty Data on Private School Students Data from same source 2. Survey, with extrapolation 3. Comparable data from different source 4. Proportionality 5. Correlated measure Poverty Data, cont. 23 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 Poverty Data: Guidance 24 Preferred method: Same source (FRPL) BUT Legis. and Regs. say equally available May use >1 method Use comparable income levels No duplication 8

9 25 Poverty Data: Collect Annually or Biennially Purpose: to reduce burden Subject to consultation Not necessary to have uniform procedure for all private schools 26 Additional T1-A/T9 Expenditure Considerations Distributing the Funds 27 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 9

10 Administrative Costs 28 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) Carryover 29 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. 30 Who gets served, how, and when? 10

11 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 Selection Criteria 32 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 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 11

12 Examples 34 Instruction provided by LEA employees or third-party contractors Extended-day services Family literacy Counseling Computer-assisted instruction Home tutoring Take-home computers Timing of Services 35 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 1119 Staff Qualifications 36 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 12

13 Professional Development 37 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 38 ESEA Flexibility Waivers Impact? 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 13

14 40 IDEA Child Find Parentally Placed Private School Children Consultation Proportionate Share What is Child Find? 41 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 Child Find and Private Schools 42 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 14

15 43 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 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 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 15

16 Proof of Consultation 46 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 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 48 Proportionate Share 16

17 49 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 Calculating the Proportionate Share 50 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 Additional Considerations 51 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). 17

18 52 Provision of Services Delivery and Provision of Services 53 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 Services Plan 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 18

19 55 Equitable Services Implementation Plan (ESIP) 56 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 GUIDANCE 57 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: 19

20 58 Questions? Disclaimer 59 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 Brustein legal & Manasevit, counsel PLLC familiar with your particular circumstances 20