Brustein & Manasevit, PLLC
IDEA: Results –
Driven
Accountability
and Fiscal
Matters
Bonnie Little Graham, Esq.
bgraham@bruman.com
Jenny Segal, Esq.
jsegal@bruman.com
Brustein & Manasevit, PLLC
www.bruman.com
Spring Forum 2013
1
2
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 State’s 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 =
tax funds
and debt
Total Expenditures
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:
 State’s revenues and extent of decrease based on
exceptional or uncontrollable circumstances
 State’s total appropriations for current versus prior year
 State’s appropriations for other agencies
 State’s 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

ED reduces allocation for FY following the FY in which the
State fails to comply.


for failure to maintain support:
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:
1. Comparison of total expenditures using local
funds only,
2. Comparison of total expenditures using State
and local funds,
3. Comparison of the per pupil amount using
local funds only, or
4. 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:
1.
2.
3.
4.
5.
Voluntary departure of special education or related
services personnel
A decrease in the enrollment of children with
disabilities
The assumption of cost by the SEA’s high cost fund
An exceptionally costly child has left the agency’s
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 LEA’s 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 year’s 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 LEA’s
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
LEA’s 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 LEA’s
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 LEA’s 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:
1.
CEIS and local funds serve total population – CEIS for
eligible CEIS students
2.
Title I provides Response to Intervention to Title I students
and CEIS supplements
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Exceptions to SNS
State Administrative Set-Aside
IDEA Regs § 300.704(d)
Supplement Not Supplant
(cont.)
IDEA Regs
§ 300.704(d)
Other State-Level Activities Set-Aside
Regs § 300.133(d)
Equitable
Services
supplement
 IDEA,
Part B(reverse
funds must
be used toIDEA
supplement
not supplant)
and not supplant State, local, and other Federal
funds.
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)
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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 attorneyclient 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.
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