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IDEA: Results


Brustein & Manasevit, PLLC IDEA: Results Driven Accountability and Fiscal Matters Bonnie Little Graham, Esq. Jenny Segal, Esq. – PowerPoint PPT presentation

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Title: IDEA: Results

IDEA Results Driven Accountability and
Fiscal Matters
  • Bonnie Little Graham, Esq.
  • Jenny Segal, Esq.
  • Brustein Manasevit, PLLC
  • Spring Forum 2013

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

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

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
  • IDEA Sec. 616(a)(2)

  • 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.

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

Determination Process
  • Meets Requirements
  • Provided valid and reliable data for all
  • 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
  • Longstanding noncompliance for a key IDEA
  • Needs Substantial Intervention
  • Failure to comply significantly affected the core
    requirements of the program

Trend in National Average Percent of Timely
Transition of Students with Disabilities
Trend in National Average Percent of Accurate
Trend in National Average Percent of Written
Complaints Timely Resolved
Trend in National Average Percent of Timely
Evaluations of Students with Disabilities
Comparison of Outcomes for Students with
Trend in National Average Reading Proficiency
for Students with Disabilities
Trend in National Average Math Proficiency for
Students with Disabilities
Components of Accountability System to be Aligned
within RDA
  • APR - indicators will be designed to measure
    outcomes most closely aligned with improving
  • 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
  • Monitoring and Technical Assistance
    differentiated system of monitoring and TA will
    support State with most significant needs for
    improvement. Based on data from priority

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

OSEP Notice of Proposed SPP/APR Revisions (April
15, 2013)
  • Proposed revisions are based on the following
  • Align with RDA vision and goals
  • Reduce duplication and reporting burden
  • Retain consistent data sources and measurements.

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.

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
  • New Part B, ind. 17/ Part C, ind. 11
  • A comprehensive, ambitious and achievable plan
    for improving results.

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
  • theory of action.
  • Phase 2 -(must include with 2016 SPP/APR
    submission for FFY 2014)
  • Infrastructure development
  • Support for LEA implementation of evidence-based
  • Evaluation plan
  • Phase 3 - (must include with 2017- 2020 SPP/APR
    submissions for FFY 2015-2018)
  • Results of ongoing evaluation and revisions to

Excess Cost
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
  • 34 CFR 300.202(b)(1)

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
  • 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

How to Calculate Excess Costs?
  • Calculate elementary school students separately
    from secondary school students.
  • 34 CFR 300.16

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

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

Step 3
  • Determine the average annual student expenditure
  • (total expenditures less capital outlay and debt
    deductions)/(average number of students)
    Average annual student per

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)

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
  • 34 CFR 300.175, 300.227(a)(2)(ii)

IDEA, Part B State and Local Maintenance of Effort
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.

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

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

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
  • 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

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

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)

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)

Local-level MOE Reductions
  • Allowable reductions
  • Voluntary departure of special education or
    related services personnel
  • A decrease in the enrollment of children with
  • The assumption of cost by the SEAs high cost
  • 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
  • 34 CFR 300.203(b)

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!

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
  • subpart F of regulations or
  • LEA is identified as significantly

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
  • Therefore, must subtract any CEIS set-aside from
    any potential LEA MOE reduction!

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 )
  • Up to SEA to recover funds from LEA

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
  • 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???

Supplement not supplant
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

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

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
  • Early intervening services
  • High cost special education and related services
  • 34 CFR 300.208

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

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

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.