IDEA, Part B Fiscal and
Results Driven Accountability
T I F FA N Y R . W I N T E RS , E S Q .
T W I N T E RS @ B R U MA N .CO M
J E N N I F E R M AU S K A P F, E S Q .
J M AU S K A P F @B R U MA N .CO M
B R U S T E I N & M A N A S E V I T, P L L C
FA L L F O R U M 2 0 1 4
Agenda
- Summary of Findings Re: OSEP Fiscal Monitoring
Letters
- Excess Costs
- Maintenance of State Financial Support (MFS) and
Local Maintenance of Effort (MOE)
- Supplement Not Supplant (SNS) Requirements
- Results Driven Accountability (RDA)
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OSEP Fiscal Monitoring
http://www2.ed.gov/fund/data/report/idea/partbfymltrs
/index.html
Reports with NO Findings
1. Alabama
2. Connecticut
3. Guam
4. Iowa
5. Louisiana
6. Missouri
7. Nevada
8. North Carolina
9. North Dakota
10.Pennsylvania
11.Virginia
12.West Virginia
Reports with Findings
1. Colorado
2. District of Columbia
3. Georgia
4. Indiana (corrected)
5. Mississippi
6. Montana
7. South Dakota
8. Vermont
9. Washington
10.Wisconsin
11.Wyoming
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Monitoring Area 1, IDEA Part B: Obligation/Liquidation
Criterion
Number
Description
Criterion
1.1
The SEA has procedures to allocate the IDEA section 34 CFR
611 and section 619 subgrants to eligible LEAs
§§300.200,
300.705(a)-(b),
based upon the correct formula.
300.815-300.816
The SEA has procedures to ensure that LEAs are
34 CFR
provided 27 months to obligate funds.
§76.709(a)
Criterion
1.2
Criterion
1.3
Applicable
Requirements
The SEA has procedures to obligate funds solely
34 CFR §§76.703,
during the 27 month period of availability and
76.709, 80.23
liquidate funds not later than 90 days after the end
of the funding period or an extension of that
timeline authorized by the Department.
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Monitoring Area 1, IDEA Part B: Obligation/Liquidation
Criterion
Number
Description
Applicable
Requirements
Criterion
1.4
The SEA has procedures to ensure that LEAs
obligate funds solely during the 27 month period
of availability and liquidate funds not later than
90 days after the end of the funding period or an
extension of that timeline authorized by the
Department.
The SEA has procedures to reallocate IDEA
section 611 and section 619 subgrants, when
appropriate, consistent with the regulations.
34 CFR §§76.709,
80.23
Criterion
1.5
Criterion
1.6
34 CFR
§§300.705(c),
300.817
The SEA has procedures to draw down funds
34 CFR
based on immediate needs; any interest accrued §80.21(c)&(i)
by the SEA or LEAs in excess of $100 per year per
account is returned to the Department.
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Monitoring Area 1, IDEA Part B:
Obligation/Liquidation
Findings:
1.
(Mississippi) State reallocated unspent LEA funds without determining
that a FAPE was provided by the district and whether the LEAs that
received the reallocation were adequately providing special education
and related services. (300.705(c) and 300.817).
2.
(Wyoming) State reallocated unspent LEA funds without determining
that a FAPE was provided by the district and whether the LEAs that
received the reallocation were adequately providing special education
and related services. (300.705(c) and 300.817).
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Monitoring Area 2, IDEA Part B: Use of Funds
Criterion
Number
Description
Criterion
2.1
The SEA has procedures to ensure that funds are 34 CFR
expended in accordance with the requirements §§300.162(a),
of the IDEA Part B.
300.202(a)(1)
Criterion
2.2
The SEA has procedures to ensure that LEAs use 34 CFR §§300.16,
IDEA funds only to pay the excess costs of
300.202(a)(2)
providing special education and related services
to children with disabilities in accordance with
IDEA.
The SEA has procedures to ensure that LEAs
34 CFR §300.133
spend the required amount on providing special
education and related services to parentallyplaced private school children with disabilities.
Criterion
2.3
Applicable
Requirements
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Monitoring Area 2, IDEA Part B: Use of Funds
Criterion
Number
Description
Criterion
2.4
The SEA has procedures to provide an approved 34 CFR §§76.560restricted indirect cost rate (RICR) for its LEAs. 76.569
Criterion
2.5
The SEA has procedures to provide IDEA funds to 34 CFR §§76.788LEA charter schools in accordance with IDEA and 76.797, 300.209(c),
EDGAR.
300.705(a) and (b),
300.815-300.816
The SEA has procedures to ensure that each LEA 34 CFR §§76.799,
provides funds to charter schools that are part of 300.209(b)
the LEA in the same manner it provides funds to
its other schools.
Criterion
2.6
Applicable
Requirements
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Monitoring Area 2, IDEA Part B:
Use of Funds
Findings:
1.
(District of Columbia) SEA had no procedures to ensure that LEAs use IDEA
funds only to pay the excess costs; SEA did not compute excess cost.
2.
(Mississippi) SEA’s excess cost computation was inconsistent with IDEA
regulations by looking at CWD count from preceding year rather than
current year.
3.
(Montana) SEA had no procedures to ensure that LEAs use IDEA funds only
to pay the excess costs; SEA did not compute excess cost.
4.
(South Dakota) SEA had no procedures to ensure that LEAs use IDEA funds
only to pay the excess costs; SEA did not compute excess cost.
5.
(Wyoming) SEA had no procedures to ensure that LEAs use IDEA funds only
to pay the excess costs; SEA did not compute excess cost.
6.
(Wisconsin) SEA had developed but not implement procedures to calculate
excess costs.
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Monitoring Area 3, IDEA Part B: ARRA
Criterion
Number
Description
Applicable
Requirements
Criterion
3.1
The SEA ensures that infrastructure investments ARRA §1511
are properly certified and posted.
Criterion
3.2
The SEA has procedures to ensure that LEAs
2 CFR §§176.60comply with the “Buy American” requirements. 176.170
Criterion
3.3
The SEA has procedures to ensure that LEAs
comply with the prevailing wage requirements.
2 CFR §§176.180,
176.190
Criterion
3.4
The SEA has procedures to ensure that it
prevents and detects fraud, waste, and abuse.
Inspector General
Act of 1987 (P.L.
100-504)
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Monitoring Area 3, IDEA Part B:
ARRA
Findings:
None.
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Monitoring Area 4, IDEA Part B: Level of Effort
Criterion
Number
Description
Applicable
Requirements
Criterion 4.1 The State has procedures to calculate its financial support for 34 CFR
special education and related services for children with
§300.163(a)
disabilities in accordance with the IDEA.
Criterion 4.2 The SEA has procedures to ensure that each LEA budgets, for 34 CFR
the education of children with disabilities, at least the same §300.203(b)
amount as the LEA spent for that purpose in the most recent
prior year for which information is available.
Criterion 4.3 The SEA has procedures to ensure that each LEA expends at
34 CFR
least the same amount as it expended in the immediate prior §§300.203(a),
year for the education of children with disabilities, unless the 300.204LEA has allowable exceptions or adjustments.
300.205
Criterion 4.4 The SEA’s procedures for reviewing LEA MOE consider each of 34 CFR
the following ways to calculate MOE: total local funds; per
§300.203(b)
capita local funds; total local and State funds; or per capita
local and State funds. The SEA’s procedures for reviewing LEA
MOE find an LEA to have met MOE if the LEA met MOE based
on one or more of those comparisons.
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Monitoring Area 4, IDEA Part B:
Level of Effort
Findings:
1.
(District of Columbia) State MFS did not include all special education costs (nonpublic tuition for students with IEPs in non-public settings at public expense;
transportation for students with IEPs; and certain other state agency costs).
2.
(Indiana) State MFS did not include funds from other state agencies.
3.
(Mississippi) State MFS did not include funds from other state agencies.
4.
(Vermont) State did not ensure LEAs were meeting the MOE eligibility standard.
5.
(Colorado) State did not permit LEAs to meet MOE using local funds only on a
total or per capital basis.
6.
(Georgia) State included local funds in MFS calculation.
7.
(Washington) State permitted LEAs to reduce MOE by the exact amount of the
CEIS set-aside.
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Monitoring Area 5, IDEA Part B: Procurement, Property, and
Record Retention
Criterion
Number
Description
Criterion
5.1
The SEA obtains approval from the Department 34 CFR §300.718
prior to using its State-level IDEA funds for
equipment, construction, or alteration of
facilities.
The SEA has procedures to ensure that an LEA
34 CFR §300.718
obtains its approval prior to using IDEA funds for
equipment, construction, or alteration of
facilities.
The SEA has procedures to ensure that its
34 CFR §80.36
procurement mechanisms, and those used by its
LEAs, conform to applicable Federal law and
State procurement rules.
Criterion
5.2
Criterion
5.3
Applicable
Requirements
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Monitoring Area 5, IDEA Part B: Procurement, Property, and
Record Retention
Criterion
Number
Description
Criterion
5.4
The SEA has procedures to ensure that each LEA 34 CFR
maintains a physical inventory of property
§80.32(d)(2)
acquired with IDEA funds and conducts
inventories to reconcile with property records at
least once every two years.
The SEA has procedures to ensure that it, and its 34 CFR §80.35
LEAs, do not award or obligate funds to any party
that has been debarred or suspended.
Criterion
5.5
Criterion
5.6
Applicable
Requirements
The SEA has procedures to ensure it, and its
LEAs, maintain financial and programmatic
records for the period of time required by
Federal law.
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34 CFR §80.42
15
Monitoring Area 5, IDEA Part B:
Procurement, Property and Record
Retention
Findings:
None.
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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.
(IDEA Regs Section 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.
(IDEA Regs Section 300.16)
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How to Calculate Excess Costs?
Calculate elementary school students separately
from secondary school students.
(IDEA Regs Section 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 tax
Funds
+
Federal
Funds
–
Capital Outlays
and Debt
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Total
Expenditures
=
Less Capital
Outlays and Debt
21
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)
=
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Average annual student per
expenditures
23
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
(IDEA Regs Sections 300.175, 300.227(a)(2)(ii))
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Reallocation
of Funds to
LEAs
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LEA Reallocation
If a State determines:
That an LEA is adequately providing FAPE to all children with disabilities
residing in the area served by the LEA with State and local funds,
THEN
Then the State MAY reallocate any portion of the funds under this part not
needed by the LEA to provide FAPE to other LEAs in the State that are not
adequately providing special education and related services to all children
with disabilities residing in the areas served by those LEAs.
(IDEA Regs Sections 300.705(c) and 300.817).
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Maintenance of State
Financial Support and
Maintenance of Effort
WHAT???
KEEP IT UP!
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Maintenance of State Financial
Support (MFS)
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.
◦ Includes ALL State funds!!
(IDEA Regs Section 300.163)
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Failure to Meet State MFS
Consequences for failure to maintain support:
◦ ED reduces allocation for any FY following the FY in which
the State fails to comply.
◦ Reduction is the same amount by which the State fails to
meet the requirement.
◦ Following year reverts back to previous level of effort
Ability of SEA to reduce its MOE is VERY RARE!
(IDEA Regs Section 300.230)
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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.
(IDEA Regs Section 300.203(a))
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Local-level MOE (cont.)
For eligibility purposes:
LEA must budget, for the education of CWDs, at
least the same total or per capita amount from
either local funds only or state and local funds as
the LEA spent for that purpose for the same
source for the most recent prior year for which
information is available
(IDEA Regs Section 300.203(b)(1))
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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. Voluntary departure of special education or related services
personnel
2. A decrease in the enrollment of children with disabilities
3. The assumption of cost by the SEA’s high cost fund
4. 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
5. The termination of costly expenditures for long-term
purchases, such as the acquisition of equipment.
34 CFR 300.204
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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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Notice of Proposed Rulemaking
(NPRM) 300.203(a)
The NPRM comment period was
extended until December 10,
2014 (bc of the Gov’t
shutdown).
Final regulations were expected
around June 2014 … ???
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NPRM – 300.203(b)
Eligibility standard. The amount of local funds an
LEA budgets for CWDs is at least the same, in total
or per capita, as the amount it spent for that
purpose in the most recent fiscal year for which
information is available and the LEA met MOE
compliance standard based on local funds only
◦ If an LEA has not previously met MOE based on local
funds only, then budget the amount spent from local
funds in the most recent fiscal year for which information
is available.
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NPRM – 300.203(c)
Subsequent years. If LEA fails to meet MOE, level of
expenditures required is the amount that would have been
required in the absence of that failure and not the LEA’s
reduced level of expenditures.
o Initially stated in the Boundy Letter (April 2012), overturning East
letter (June 2011)
However, this is current law (even without the final
rulemaking!)
Because language was included in H.R. 3547, the
Consolidated Appropriations Act, 2014, 113th Cong. (2nd
Sess. 2014)
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NPRM – 300.203(d)
Consequence of failure to maintain effort. If LEA
fails to meet MOE, the SEA is liable in a recovery
action to return to ED, using non-federal funds, an
amount equal to the amount by which the LEA
failed to maintain its level of expenditures.
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Supplement
not Supplant
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SEA Supplement Not Supplant (SNS)
•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 State admin and other State-level
activities without regard to the prohibition on
supplanting.
(IDEA Regs Section 300.162; 300.704(d))
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LEA SNS
•
Part B funds must be used to supplement State, local
and other Federal funds (used for providing services
to children with disabilities). 34 CFR 300.202.
•
If LEA meets MOE, then LEA meets supplement not
supplant requirements
• No particular cost test
• ARRA Guidance, April 2009
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OMB Circular A-133 Compliance Supplement
Auditors presume supplanting occurs if federal funds were
used to provide services** . . .
1. Required to be made available under other federal,
State, or local laws
2. Paid for with non-federal funds in prior year
3. Same service to non-Title I students with State/local
funds
**Note that the 2014 Compliance Supplement states
that these provisions do not apply to IDEA!
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Results Driven
Accountability
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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 educational 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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OSEP’s Vision for RDA
All components of an accountability system
will be aligned in a manner that best support
States in improving results for infants,
toddlers, children and youth with disabilities,
and their families.
OSEP’s RDA Website:
http://www2.ed.gov/about/offices/list/osers/osep/rda/inde
x.html
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Components of RDA
•State Performance Plan / Annual Performance
Report (SPP/APR) measures results and
compliance.
•Determinations reflect State performance on
results, as well as compliance.
•Differentiated monitoring and technical assistance
support improvement in all States, but especially
low performing States.
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Proposed SPP/APR Focus on
Systemic Improvement
•“Aligned with RDA Vision and Goals”
•Reduction of Reporting Burden
• Combines SPP and APR into one document
• Collects SPP/APR data through a web-based, online submission process (GRADS)
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State Systemic Improvement
Plan (SSIP)
•Comprehensive, multi-year SSIP, focused on
improving results for children with disabilities
• Instead of multiple small improvement plans for each
indicator
• Broad strategies with detailed improvement activities
•New Indicator 17
•Multi-year, multi-phase process, beginning with
FFY 2013 APR (submitted in 2015)
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SSIP Phase 1
•Submitted in 2015 with FFY 2013 SPP/APR
•Components of Phase I:
• Data Analysis
• Identification of Focus for Improvement
• Infrastructure to Support Improvement and Build
Capacity
• Theory of Action (If X  then Y)
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SSIP Phases 2 & 3
•Phase 2 (submitted in 2016 with FFY 2014 SPP/APR)
• Infrastructure Development
• Support for LEA/EIS Program Implementation of Evidence-Based
Practices
• Evaluation Plan
•Phase 3 (submitted in 2017 with FFY 2015 SPP/APR)
•
•
•
•
Results of ongoing evaluation of strategies in the SSIP
Extent of implementation of strategies
Progress toward established goals
Any revisions made to the SSIP in response to the evaluation
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Determinations, 2012-2015
•OSEP working to revise determination
process to be more results focused.
• 2012: Determinations were driven by
compliance indicators
• 2013: Began to use compliance data in
determinations, issuance of ‘Compliance Matrix’
• 2014: OSEP used RDA data in determinations for
the first time
• 2015: OSEP will continue to use RDA in
determination, but exactly how remains unclear
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RDA Factors in 2014
Determinations
First Time RDA Factors used in Determinations
Made up 50% of each State’s APR Determination
RDA data used in FFY 2012 APR considered:
 Participation and Performance on Statewide Assessments
and the National Assessment of Educational Progress
(NAEP)
Had significant impact on many determinations
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RDA Impact on 2014
Determinations
IDEA State
Determinations 2014
Meets
Needs
Needs
Requirements Assistance Intervention
Compliance Only (If
results factors had not
been considered)
43
14
3
Actual Determinations
(Including RDA Results
Factors)
18
36
6
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Differentiated Monitoring and
Support
•Based on determinations and SSIP
•All States to receive TA on SSIP development and
general TA
•States with the greatest needs will receive more
intensive support
•OSEP piloting collaborative efforts in connection
with SIG visits
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Accountability for Compliance
•Review of compliance indicators in SPP/APR
•Ongoing fiscal monitoring and audit resolution
•OSEP TA in key areas
•OSEP Desk Audit Process
• To be conducted for every State over next four years
• To include State accountability, dispute resolution, and
data quality
• OSEP reserving option to conduct on-site reviews where
necessary to collect additional data / provide technical
support
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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 or
a legal service. This presentation does not create a clientlawyer relationship with Brustein & Manasevit, PLLC and,
therefore, carries none of the protections under the D.C.
Rules of Professional Conduct. Attendance at this
presentation, a later review of any printed or electronic
materials, or any follow-up questions or communications
arising out of this presentation with any attorney at Brustein
& Manasevit, PLLC 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.
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