IDEA: Results

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IDEA Results Driven Accountability and
Fiscal Matters

• Bonnie Little Graham, Esq.
• bgraham_at_bruman.com
• Jenny Segal, Esq.
• jsegal_at_bruman.com
• Brustein Manasevit, PLLC
• www.bruman.com
• Spring Forum 2013

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Agenda

• Results-Driven Accountability
• Maintenance of Effort Provision
• Supplement not Supplant Provision
• Excess Costs Provision

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RESULTS-DRIVEN ACCOUNTABILITY IN SPECIAL
EDUCATION
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IDEA Monitoring

• U.S. Department of Education Office of Special
  Education Programs (OSEP) monitors States
  implementation of IDEA Parts B and C
• States monitor local education agencies (LEAs)
  implementation of Part B and early intervention
  services (EIS) programs implementation of Part C

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Monitoring Priorities

• The primary focus of Federal and State
  monitoring activities shall be on
• Improving educational results and functional
  outcomes for all children with disabilities and
• Ensuring that States meet the program
  requirements under this part with a particular
  emphasis on those that are closely related to
  improving education results for children with
  disabilities.
• IDEA Sec. 616(a)(2)

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• Using such qualitative indicators as are needed
  to adequately measure performance in the
  following priority areas
• Provision of FAPE in the LRE
• State exercise of general supervisory authority
  including child find, effective monitoring, use
  of resolution sessions, mediation, voluntary
  binding arbitration, and transition services
• Disproportionate representation
• Other relevant information and data, including
  data provided by States under section 618.

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Current System of Accountability

• Determination based on totality of information
  including
• Annual Performance Report (APR)/State Performance
  Plan (SPP)
• Monitoring
• Other Public information

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Determination Process

• Meets Requirements
• Provided valid and reliable data for all
  indicators
• Demonstrated substantial compliance for
  compliance indicators (4B, 9, 10, 11, 12, 13,
  15,16, 17, 20)
• Needs Assistance
• State that did not meet requirement, need
  intervention, or need substantial intervention
• Needs Intervention
• Very low compliance data
• Failure to provide reliable data for a compliance
  indicator
• Longstanding noncompliance for a key IDEA
  requirement
• Needs Substantial Intervention
• Failure to comply significantly affected the core
  requirements of the program

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Trend in National Average Percent of Timely
Transition of Students with Disabilities
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Trend in National Average Percent of Accurate
Data
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Trend in National Average Percent of Written
Complaints Timely Resolved
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Trend in National Average Percent of Timely
Evaluations of Students with Disabilities
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Comparison of Outcomes for Students with
Disabilities
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Trend in National Average Reading Proficiency
for Students with Disabilities
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Trend in National Average Math Proficiency for
Students with Disabilities
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Components of Accountability System to be Aligned
within RDA

• APR - indicators will be designed to measure
  outcomes most closely aligned with improving
  results.
• State Status Determinations
• designation meets requirements should
  acknowledge States effectiveness in improving
  outcomes for children with disabilities relative
  to other States.
• Determinations will be based on overall
  performance on a set of priority indicators and
  other relevant data rather than just compliance
  indicators.
• Monitoring and Technical Assistance
  differentiated system of monitoring and TA will
  support State with most significant needs for
  improvement. Based on data from priority
  indicators.

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OSEP 13-6 Memorandum (Issued 12/2012)

• Revised SPP and (FY) 2011 APR due Feb. 15, 2013
• ED is considering how it will use data from
  results indicators in making determinations in
  spring 2013.
• Developing State Results Matrix and State
  Compliance Matrix
• Example State Assessments

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OSEP Notice of Proposed SPP/APR Revisions (April
15, 2013)

• Proposed revisions are based on the following
  principles
• Align with RDA vision and goals
• Reduce duplication and reporting burden
• Retain consistent data sources and measurements.

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OSEP Notice of Proposed SPP/APR Revisions (April
15, 2013) (Cont.)

• Major Proposed Revisions
• Combine SPP/APR into one document
• Collect SPP/APR through online submission
• Remove
• Timely correction of noncompliance (Part B,
  ind. 15/ Part C, ind. 9) though will continue to
  be monitored through compliance indicators.
• Timely and accurate data (Part B, ind. 20/ Part
  C, ind. 14)- though OSEP will continue to analyze
  data already available to ED.

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OSEP Notice of Proposed SPP/APR Revisions (April
15, 2013) (Cont.)

• Report only on slippage when State did not meet
  its target no requirement to report on progress
  (EDGAR 80.40(b)(2))
• State Systems Improvement Plan (SSIP)
• replaces reporting on improvement activities by
  indicator.
• New Part B, ind. 17/ Part C, ind. 11
• A comprehensive, ambitious and achievable plan
  for improving results.

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OSEP Notice of Proposed SPP/APR Revisions (April
15, 2013) (Cont.)

• SIPP- Three Phases
• Phase I (must include with 2015 SPP/APR
  submission for FFY 2013)
• Data analysis
• identification of the focus for improvement
• infrastructure to support improvement and build
  capacity
• theory of action.
• Phase 2 -(must include with 2016 SPP/APR
  submission for FFY 2014)
• Infrastructure development
• Support for LEA implementation of evidence-based
  practices
• Evaluation plan
• Phase 3 - (must include with 2017- 2020 SPP/APR
  submissions for FFY 2015-2018)
• Results of ongoing evaluation and revisions to
  SPP.

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Excess Cost
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Excess Cost Requirement

• The excess cost requirement prevents an LEA from
  using funds provided under Part B of the Act to
  pay for all of the costs directly attributable to
  the education of a child with a disability.
• Exception Children with disabilities ages 3-5
  and 18-21 if local or State funds are not
  available.
• 34 CFR 300.202(b)(1)

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What is an Excess Cost?

• Costs in excess of the average annual per-student
  expenditures in an LEA during the preceding
  school year for an elementary school or secondary
  school student, as may be appropriate, and that
  must be computed after deducting amounts received
  under
• IDEA Part B
• Title I, Part A ESEA
• Title III, Parts A and B of the ESEA
• Any State or local funds expended for programs
  that would qualify for assistance under any of
  the grant programs described above) and
• Capital outlay or debt services.
•  
• 34 CFR 300.16

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How to Calculate Excess Costs?

• Calculate elementary school students separately
  from secondary school students.
• 34 CFR 300.16

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Four Steps

• Step 1
• LEA must determine total amount of expenditures
  for elementary school students from all
  sources-local, State and federal (including Part
  B)-in the proceeding school year.
• (Less Capital outlay and debt services)
• State and Local Federal funds capital outlays
  Total Expenditures
• tax funds and debt Less Capital
  Outlays and Debt

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Step 2

• Subtract from the total expenditures less capital
  outlays and debt
• IDEA Part B
• Title I, Part A ESEA
• Title III, Parts A and B of the ESEA and
• Any State or local funds expended for programs
  that would qualify for assistance under any of
  the grant programs described above)
• Total expenditures less capital outlay and
  debt, minus deductions

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Step 3

• Determine the average annual student expenditure
• (total expenditures less capital outlay and debt
  minus
  deductions)/(average number of students)
  Average annual student per
  expenditures

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Step 4

• Determine the total minimum amount of funds the
  LEA must spend for the education of its
  elementary school children with disabilities (not
  including capital outlay debt service)
• (Number of children with disabilities in LEA
  elementary schools)
• X
• (average annual per student expenditure)
  (Total minimum amount LEA must
  spend for education of children
  with disabilities before
  using part B funds)

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SEA Exceptions

• SEA providing direct services to children with
  disabilities to make FAPE available
• May use Part B funds from State set aside OR Part
  B payments that would have otherwise been
  available to an LEA for the purpose of serving
  those children
• Does not need to comply with excess cost
  requirement
• 34 CFR 300.175, 300.227(a)(2)(ii)

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IDEA, Part B State and Local Maintenance of Effort
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State Maintenance of Effort (MOE)

• A State must not reduce the amount of State
  financial support for special education and
  related services for children with disabilities
  below the amount of that support for the
  preceding fiscal year.
• Must use ALL State funds!!
• May not use Medicaid reimbursements towards SEA
  MOE requirements.

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Grant Application FY 2013 MOE Section

• States must provide in whole dollars the total
  amount of State financial support made available
  for special education and related services for
  children with disabilities by year for the State
  fiscal years included in the application.
• Include state funds provided to LEAs, the SEA,
  and other state agencies for that purpose
• Previously, States only affirmed that they were
  in compliance with MOE requirements

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State MOE Waiver

• IDEA Waiver ONLY applies to State MOE! (not LEA
  MOE)
• ED may waive SEA MOE (for one FY at a time) if ED
  determines that a waiver would be equitable due
  to
• Exceptional or uncontrollable circumstances such
  as a natural disaster or a precipitous
  unforeseen decline in State financial resources
  or
• The SEA meets Supplement Not Supplant Waiver
  Requirements. IDEA Regs 300.163(c) and 300.164
• Does not reduce State MOE for subsequent years

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State MOE Waiver (cont.)

• ED wants to make sure any reduction in State SPED
  funds is not greater than the reduction in
  revenues experienced by the State (SPED treated
  equitably).
• Factors considered
• States revenues and extent of decrease based on
  exceptional or uncontrollable circumstances
• States total appropriations for current versus
  prior year
• States appropriations for other agencies
• States compliance with Implementing IDEA, Part B
  and performance record
• Other available funds to mitigate effects of
  waiver

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Failure to Meet State MOE

• South Carolina
• Consequences for failure to maintain support
• ED reduces allocation for FY following the FY in
  which the State fails to comply.
• March 2013- Stopgap spending bill, Section 1514
  of H.R. 933. Penalty will not continue
  perpetually. Reduction only for the year(s) out
  of compliance.
• Reduction is the same amount by which the State
  fails to meet the requirement.
• Section 1514 of H.R. 933 - reduced funding taken
  away from a State that fails to make MOE will be
  split among other States.
• Following year reverts back to previous level of
  effort.

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Local-level Maintenance of Effort (MOE)

• An LEA may not use its Part B funds to reduce the
  level of expenditures for the education of
  children with disabilities made by the LEA from
  local funds below the level of those expenditures
  for the preceding fiscal year.
• 34 CFR 300.203(a)

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Local-level MOE (cont.)

• Four ways to calculate Local MOE
• Comparison of total expenditures using local
  funds only,
• Comparison of total expenditures using State and
  local funds,
• Comparison of the per pupil amount using local
  funds only, or
• Comparison of the per pupil amount using State
  and local funds.
• 34 CFR 300.203(b)

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Local-level MOE Reductions

• Allowable reductions
• Voluntary departure of special education or
  related services personnel
• A decrease in the enrollment of children with
  disabilities
• The assumption of cost by the SEAs high cost
  fund
• An exceptionally costly child has left the
  agencys jurisdiction, aged out of the
  eligibility age-range, or no longer needs the
  program of special education, or
• The termination of costly expenditures for
  long-term purchases, such as the acquisition of
  equipment.
• 34 CFR 300.203(b)

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Local-level MOE - Optional Flexibility

• If there is an increase in the LEAs allocation,
  compared to the previous FY allocation,
• Then the LEA may reduce the level of expenditures
  otherwise required by not more than 50 of the
  amount of excess in allocation,
• But the LEA must use an amount of local funds
  equal to the MOE reduction to carry out
  activities that could be supported with ESEA
  funds, regardless of whether the LEA is using
  ESEA funds for those activities. (IDEA Regs
  Section 300.205)
• This will reduce the following years MOE as well!

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Local-level MOE - Optional Flexibility (cont.)

• Flexibility may be unavailable if
• SEA determines that LEA is unable to establish
  and maintain programs of FAPE that comply with
  Part B and 613(a) or
• The SEA took action against an LEA under 613(a)
  of IDEA
• SEA has taken action against an LEA under 616
  and
• subpart F of regulations or
• LEA is identified as significantly
  disproportionate.

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Local-level MOE Optional Flexibility CEIS

• The amount of LEA MOE reduction that an LEA can
  take is affected by an LEAs use of Part B funds
  for coordinated early intervening services
  (CEIS).
• Therefore, must subtract any CEIS set-aside from
  any potential LEA MOE reduction!

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Local-level MOE (cont.)

• Consequences for violation SEA can not reduce an
  LEAs current or future allocation.
• ED would handle an LEA MOE violation by seeking a
  recovery of funds from the SEA.
• The level of recovery would depend on the degree
  to which the LEA failed to maintain effort, but
  would not exceed the amount of the LEAs subgrant
  for the year in question. (See OSEP policy
  letter, July 26, 2006, to Carol Ann Baglin on
  www.bruman.com )
• Up to SEA to recover funds from LEA

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Local-level MOE (cont.)

• Consequences for violation
• The LEAs MOE requirement reverts to the level
  set the last time the LEA met MOE!
• Letter to the Center for Law and Education,
  Kathleen Boundy, dated April 4, 2012 on
  www.bruman.com
• Rescinds previous Letter to NASDSE Executive
  Director Bill East, dated June 16, 2011.
• What about LEAs that relied on June 2011 letter
  to reduce effort levels???

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Supplement not supplant
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SEA Supplement Not Supplant

• Part B funds must be used to supplement and
  increase the level of Federal, State and local
  funds expended for special education and related
  services provided to children with disabilities,
  and in no case supplant those Federal, State and
  local funds.
• A State may use funds it retains for State admin
  and other State-level activities without regard
  to the prohibition on supplanting other funds
• 34 CFR 300.164

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LEA Supplement Not Supplant

• Part B funds must be used to supplement State,
  local and other Federal funds (used for providing
  services to children with disabilities)
• If LEA meets MOE, then LEA meets supplement /not
  supplant requirements
• No particular cost test
• ARRA Guidance, April 2009
• 34 CFR 300.202

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LEA Supplement Not Supplant (cont.)

• Notwithstanding 300.202 (SNS), 300.203 (MOE), and
  300.162 (Commingling), funds provided to an LEA
  may be used for
• Services and aids that also benefit nondisabled
  children
• Early intervening services
• High cost special education and related services
• 34 CFR 300.208

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CEIS and Supplement Not Supplant

• CEIS must supplement any ESEA activities or
  services. 34 CFR 300.226(e)
• Model example
• CEIS and local funds serve total population
  CEIS for eligible CEIS students
• Title I provides Response to Intervention to
  Title I students and CEIS supplements

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Supplement Not Supplant (cont.)
Exceptions to SNS Exceptions to SNS
State Administrative Set-Aside IDEA Regs 300.704(d)
Other State-Level Activities Set-Aside IDEA Regs 300.704(d)
Equitable Services (reverse supplement not supplant) IDEA Regs 300.133(d)
Services and aids that also benefit nondisabled children IDEA Regs 300.208(a)(1)
Early Intervening Services IDEA Regs 300.208(a)(2)
High Cost Fund IDEA Regs 300.208(a)(3)
Administrative Case Management IDEA Regs 300.208(b)
Schoolwide Funds (only amount consolidated) IDEA Regs 300.206(a)

• IDEA, Part B funds must be used to supplement and
  not supplant State, local, and other Federal
  funds.

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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, PLLC.  You should not take any action
based upon any information in this presentation
without first consulting legal counsel familiar
with your particular circumstances.