IDEA, Part B Hot Topics and Updates

IDEA, Part BIDEA, Part BHot Topics and UpdatesHot Topics and Updates

Bonnie L. Graham, Esq.

[email protected]

Jennifer B. Segal, Esq.

[email protected]

Brustein & Manasevit, PLLC

Fall Forum 2013

AgendaAgenda

- Maintenance of Effort- Supplement Not Supplant- Use of Funds- Dispute Resolution- Subgrant

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IDEA, PART B STATE IDEA, PART B STATE AND LOCAL AND LOCAL MAINTENANCE OF MAINTENANCE OF EFFORTEFFORT

What???What???

Keep It Up!Keep It Up!


State Maintenance of State Maintenance of Financial Support (MFS)Financial Support (MFS)(State Maintenance of Effort (MOE))(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!!


Failure to Meet State Failure to Meet State MOEMOE

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!


Local-level Maintenance Local-level Maintenance of Effort (MOE)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))


Local-level Maintenance Local-level Maintenance of Effort (MOE) (cont.)of Effort (MOE) (cont.)

SEA must determine that an LEA complies with [MOE] for purposes of establishing the LEA’s eligibility for an award for a fiscal year if the LEA budgets, for the education of CWDs, at least the same total or per capita amount from either of the following sources as the LEA spent for that purpose for the same source for the most recent prior year for which information is available: ◦ (i) local only; (ii) State and local

(IDEA Regs Section 300.203(b)(1)) 7Brustein & Manasevit, PLLC

NPRM – 300.203(a)NPRM – 300.203(a)

Compliance standard. An LEA meets this standard if it does not:◦Reduce from State and local, in total or

per capita, below preceding fiscal year;◦Reduce from local, in total or per

capita, below the year for which LEA met MOE standard based on local only; or

◦Reduce from local, in total or per capita, below preceding fiscal year if the LEA has not previously met the MOE compliance standard based on local funds only

Brustein & Manasevit, PLLC 8

NPRM – 300.203(b)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


NPRM – 300.203(c)NPRM – 300.203(c)


NPRM – 300.203(d)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.


Fiscal year (actual expenditures) Local funds State funds

State and local funds

Reductions in Expenditures pursuant to § 300.204 or § 300.205

Covering SY 2006-2007 * 110 190 300

Covering SY 2007-2008 70 210 * 280

20 reduction permissible under § 300.204(a).

Covering SY 2008-2009 40 230 * 270

10 reduction permissible under § 300.204(c).

Covering SY 2009-2010 40 240 * 280Covering SY 2010-2011 60 220 * 280Covering SY 2011-2012 * 80 150 230

Covering SY 2012-2013 * 75 160 235

5 reduction permissible under § 300.205.


IDEA SUPPLEMENT IDEA SUPPLEMENT NOT SUPPLANTNOT SUPPLANT


SEA Supplement Not SupplantSEA 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 SupplantLEA 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). 34 CFR 300.202.

•If LEA meets MOE, then LEA meets supplement not supplant requirements• No particular cost test • ARRA Guidance, April 2009


OMB Circular A-133 OMB Circular A-133 Compliance SupplementCompliance 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 laws2.Paid for with non-federal funds in prior year3.Same service to non-Title I students with State/local funds

**Note that the Compliance Supplement states that these provisions do not apply to IDEA!

LEA Supplement Not Supplant LEA Supplement Not Supplant (cont.)(cont.)


OSEP Policy letterOSEP Policy letterMN DOE, January 30, 2013

◦“The district would be required to demonstrate that the Federal IDEA, Part B funds they are requesting to be used for CEIS supplement and do not supplant existing State, local and other federal funds, including ESEA funds, the district is using for [its program].” Citing 34 CFR 300.202.


CEIS and Supplement Not SupplantCEIS 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


Supplement Not Supplant Supplement Not Supplant (cont.)(cont.)

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


Use of FundsUse of Funds

Use of IDEA FundsUse of IDEA Funds

OSEP Policy Letter, WI March 2013To what extent can IDEA be used to support personnel that work with students who are not students with disabilities?



OSEP Policy Letter, WI March 2013“IDEA, Part B funds may not be used for non-special education instruction in the general education classroom, instructional materials for use with non-disabled children, or for professional development of general education teachers not related to meeting the needs of children with disabilities, subject to two exceptions:”

◦ CEIS set-aside, 34 CFR 300.226◦ Consolidated in schoolwide school, 34 CFR

300.206



OSEP Policy Letter, WI March 2013Can Sped Teacher provide interventions to small group of students with and without disabilities?

◦ Yes, if teacher must prepare the lesson/provide services to SWDs, other nondisabled students may attend the lesson and benefit from those services,

BUT◦ If fully funded by IDEA, Part B, teacher cannot

grade papers, meet with parents or perform any other functions with nondisabled students

34 CFR 300.208(a)Brustein & Manasevit, PLLC 24


OSEP Policy Letter, WI March 2013Can Sped Teacher provide interventions as part of RTI to small group of students solely without disabilities?

◦ NO, teacher funded with IDEA, Part B funds cannot serve small group of students without disabilities.

Can Sped Teacher co-teach in an inclusion classroom with general ed teacher and have equal responsibility for students with and without disabilities?

◦ Determined on case by case basis, however teacher funded with IDEA, Part B cannot perform functions beyond providing specialized instruction and related services.



OSEP Policy Letter, WI March 2013Can Sped teacher work on child find team that determines whether to refer students for sped services?

◦ Yes, child find activities may be funded with IDEA, Part B.

Can Sped Teacher assist teachers working with nondisabled students regarding interventions?

◦ To the extent the assistance is considered PD for general ed teacher to identify, locate and evaluate SWDs. Otherwise, cannot assist in interventions for general ed students.



OSEP Policy Letter, MN January 2013Can CEIS funds be used to support students with disabilities?

◦ No, CEIS cannot support services to children with disabilities or nondisabled students who do not need additional academic and behavioral support to succeed in a general education environment

◦ 34 CFR 300.226


DISPUTE DISPUTE RESOLUTIONRESOLUTION


MediationMediationAvailable for matters arising prior to the filing

of due process complaint ◦ Not limited to issues raised in due process

hearing; may mediate any issues in dispute

Mediation is CONFIDENTIAL!

LEA cannot require mediation◦ SEA responsible for selecting mediators, and it

must be on a random, rotational, or other impartial basis

◦ “[ED does] not believe that a hearing officer can order that the parties to a due process complaint engage in mediation.” (71 Fed. Reg. 46694 (Aug. 14, 2006)).


State Complaints State Complaints Each SEA must establish procedures

for filing and resolving state complaints.◦60 day time limit◦ Independent on-site investigation◦Provide complainant with opportunity to

submit additional information ◦Provide public agency with opportunity to

respond◦ If a parent filed the complaint - Provide

opportunity for mediation◦ Independent, written decision◦Remedies and corrective actions for

noncompliance found 30Brustein & Manasevit, PLLC

Due Process ComplaintsDue Process ComplaintsDue Process Complaints:

◦Allow parents/students to enforce the rights guaranteed under the IDEA.

◦Relate to refusal or denial to initiate or change the identification, evaluation, educational placement of the provision of a free appropriate public education (FAPE).

◦May be filed by a parent, student, or LEA.◦The alleged violation must have occurred

within 2 years of the date of the complaint. Some States have a 1 year statute of limitations.

◦Each SEA must establish and maintain due process procedures.


OSEP Memo and Q&AOSEP Memo and Q&ADispute Resolution, July 2013Dispute Resolution, July 2013Under what circumstances do the Part

B regulations prevent public agencies from using mediation?◦Parent’s refusal or failure to respond to

consent to the initial provision of sped and related services

◦Parent’s revocation of consent for continued provision of sped and related services

◦Parent’s refusal or failure to respond to consent to initial evaluation or reevaluation of child who is home schooled or parentally placed in private school at parental expense


OSEP Memo and Q&AOSEP Memo and Q&ADispute Resolution, July 2013Dispute Resolution, July 2013May States use IDEA funds for

recruitment and training of mediators?◦Yes, States must bear the cost of

mediation, cannot require LEAs to use Part B funds to pay for mediation

Is mediation confidential?◦Discussions in mediation are

confidential; agreements may or may not be confidential


OSEP Memo and Q&AOSEP Memo and Q&ADispute Resolution, July 2013Dispute Resolution, July 2013If parent wants to challenge LEA’s

eligibility determination, can parent file State complaint?◦Yes, SEA may not refuse to resolve a

State complaint even if the complaint concerns a matter that could also be resolved through due process

Can you appeal a State complaint?◦Regs are silent; permitted if State sets

up appeal process


OSEP Memo and Q&AOSEP Memo and Q&ADispute Resolution, July 2013Dispute Resolution, July 2013When can LEA use due process

procedures to override parent’s refusal to consent?◦ Initial evaluations and reevaluations

If parent wants an independent educational evaluation and LEA believes its evaluation is appropriate, must the LEA file due process complaint?◦Yes, the LEA must “without unnecessary

delay” file a due process complaint or pay for the IEE


OSEP Memo and Q&AOSEP Memo and Q&ADispute Resolution, July 2013Dispute Resolution, July 2013If both parents have legal

authority to make educational decisions and one parent revokes consent for provision of sped and related services, may the other parent file due process complaint to override the revocation of consent?◦No, the LEA must accept the one

parent’s revocation of consent. Brustein & Manasevit, PLLC 36

OSEP Policy Letter, Mtn Plains OSEP Policy Letter, Mtn Plains Regional Resource Center, Oct. Regional Resource Center, Oct. 20082008Can an SEA require an LEA to

correct individual student IEPs that the SEA determined noncompliant during monitoring activities?

AndCan an SEA require an IEP team

meeting be reconvened if procedures were not followed?◦Yes, per SEA’s general supervisory

responsibility (34 CFR 300.149)Brustein & Manasevit, PLLC 37

SUBGRANTSSUBGRANTS


SEA Distribution of SEA Distribution of FundsFunds

State Administration is Capped! ◦ FY 09: Same

reservation as FY 2004 or $800,000 (plus rate of inflation)

Other State-level Activities are Capped!

◦ Amount Equal to 10% of SEA Allocation of FY 2006 (adjusted cumulatively for inflation)

◦ No Reasonable Adjustments


LEA Distribution of FundsLEA Distribution of Funds LEA Base payments

◦ Section 611 (Grants to States) – FY1999 data

◦ Section 619 (Preschool Grants) – FY1997 data

85% Population-based◦ Relative numbers of

children enrolled in public & private elementary & secondary schools within LEA’s jurisdiction

15% Poverty-based◦ Relative numbers of

children living in poverty as determined by SEA


OSEP Policy Letter, MN DOE, OSEP Policy Letter, MN DOE, February 2009 February 2009

Can an SEA allocate funds to a “co-op” which covers several participating districts?◦Yes, if co-op meets IDEA definition of “LEA”

34 CFR 300.12Can the “co-op” then subgrant funds

to some or all of the participating districts?◦No, “nothing in either IDEA or EDGAR

allows a subgrantee (an entity receiving funds from the grantee) to further subgrant funds to other entities, including member or participating districts of a co-op”



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.


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IDEA, Part B Hot Topics and Updates