Special Education Leadership Network Meeting May 12, 2011

Special Education Leadership Network

MeetingMay 12, 2011

PRIVATE PLACEMENT CASES: A LESSON FROM

THE 8TH CIRCUITEvelyn Howard-Hand

Walsh, Anderson, Brown, Gallegos and Green, P.C.

How It Works Private placement cases turn on two

main issues. Did the district offer FAPE? If not, is the private program

appropriate? There are defenses available, but if the

district loses on these two issues, they are likely going to owe something.

Did the District offer FAPE to C.B.?

Kindergarten teacher spotted some problems almost immediately. Slow progress in reading.

C.B. declared eligible (LD) in 1st grade. Reading rate in 1st grade went from 3

wpm to 13; district rated this as “slight” progress.

Very slow progress continued in 2nd, 3rd grade.

End of 3rd grade: 32 wpm.

The Teacher Helps Out Teacher invited C.B. to summer program

before 4th grade—Orton-Gillingham method.

Teacher saw big improvement after nine one-hour sessions.

But by the time 4th grade started, he had regressed again.

W-J III showed reading at 0.1 percentile. C.B. has average intelligence.

Try Another Program? School officials suggested to the mother

a move to another public school where the CLASS program was used for kids who need intense interventions.

Mom balked, concerned over boy’s self esteem and social skills.

IEP did not suggest the CLASS program.

4th Grade The goal is still to get him to a 1st grade

level in reading. Thus he is falling further behind.

“By the end of 4th grade, C.B.’s reading level was less than what he had achieved the previous summer, and far below the fluency expected of a student at the end of 4th grade.”

And it was even worse when 5th grade started.

5th Grade School brings up the CLASS program

again, but agrees to keep C.B. in his current school due to parental concerns.

Progress is still very slow. At the end of 5th grade, he reads 2nd grade material at 55 wpm.

Groves School Parents enroll C.B. in the Groves School

for 6th grade. Parents ask school to pay for this. School says no. Litigation.

The Rulings ALJ (hearing officer) ruled for the student,

noting that the district failed to make FAPE available and Groves was appropriate.

Parent then filed suit to seek attorneys’ fees. District filed appeal of ALJ decision.

District court agreed with ALJ that district did not provide FAPE.

But……

But….. But held that parents were NOT entitled

to reimbursement because Groves was too restrictive.

90% of the students at Groves had IEPs due to learning disabilities.

CLASS program offered similar services in a less restrictive environment.

Circuit Court Decision 8th Circuit agreed that C.B. was deprived

of FAPE:“There may be instances in which an educational program that results in such slight progress is sufficient…but this is not such a case. C.B.’s intellectual ability consistently measured in the average range, and…he was socialized, well behaved and persistent.”

And the LRE Factor? Court reversed the district court on the

second issue, thus ruling in favor of the parents.

This is what makes this case interesting and important.

Private Placement and LRE Court notes that LRE is a preference, not

an absolute mandate. If school fails to provide FAPE, parents

have a “right of unilateral withdrawal.” The private program passes muster if it is

“proper under the Act” and “furthers the purposes of the Act.”

Applying that Standard “It did not frustrate the purposes of the

Act for C.B.’s parents to enroll him at Groves, where he could receive the educational benefit that was lacking in the public schools.”

Parents not required to give the school another try, especially when the CLASS program was never proposed in an IEP.

Let’s Remember Where LRE Came From

“A less restrictive environment is the ideal, but C.B.’s move to Groves after years of frustration in the public schools is a far cry from “the apparently widespread practice of relegating handicapped children in private institutions or warehousing them in special classes” that concerned Congress.”Quotes are from Burlington case.

The Case C.B. v. Special School District No. 1,

Minneapolis, Minnesota, 111 LRP 28683 8th Circuit April 21, 2011

Contact Evelyn Howard-Hand Walsh, Anderson, Brown, Gallegos and

Green, P.C. [email protected] www.walshanderson.com Austin, Texas

mailto:[email protected]

http://www.walshanderson.com/

Special Education Consolidated Grant Applicationand

Program Guidelines

Revisions for 2011-2012

TEA|Division of IDEA CoordinationMay 2011

PS3502 Private Schools Participation Form

TEA|Division of IDEA Coordination May 2011 [Revised 5/10/11] 20

PS3502 Private Schools Participation Form

Revisions:

• Part 6 Children Served section

• Part 8 Documentation of the Consultation Process section - Attachment


PS3502 Private School Form

Child counts are entered in 4 sections:

• Part 2 Children Evaluated

• Part 4 Proportionate Share Calculation for IDEA-B Formula Funds

• Part 5 Proportionate Share Calculation for IDEA-B Preschool Funds

• Part 6 Children ServedTEA|Division of IDEA Coordination

May 2011 [Revised 5/10/11] 22

PS3502 – Part 2

TEA|Division of IDEA Coordination May 2011 [Revised 5/10/11]

Part 2 Children Evaluated:

The number of parentally-placed private school children aged 3 through 21 evaluatedJuly 1, 2010 through June 30, 2011

23

PS3502 – Part 4


Part 4 – Formula Funds, Lines b and c:

b: Total number of children with disabilities aged 3 through 21 in the PUBLIC schools on the Last Friday in October 2010

c: Total number of parentally-placed private school children with disabilities aged 3 through 21 in PRIVATE schools on the Last Friday in October 2010

24

PS3502 – Part 5


Part 5 – Preschool Funds, Lines b and c:

b: Total number of children with disabilities aged 3 through 5 in the PUBLIC schools on the Last Friday in October 2010

c: Total number of parentally-placed private school children with disabilities aged 3 through 5 in PRIVATE schools on the Last Friday in October 2010

25

PS3502 – Part 6


Part 6 Children Served – Revised text

• Previous version: Of the number of eligible children indicated in part 4c (private school children ages 3-21, last Friday in October 2010), number receiving services on the Last Friday in October 2010

• New version: Of the number of private school children ages 3-21 determined to be children with disabilities on the Last Friday in October 2009, number of children who received services in 2010-2011

26

PS3502 – Part 8

Part 8 Documentation of the Consultation Process

• According to the Federal regulations:

– If representatives of participating private schools have not provided written affirmation to the LEA that timely and meaningful consultation took place, the LEA must submit documentation of the consultation process to the State Agency


PS3502 – Part 8

• The PS3502 Private School form already describes the LEA’s consultation process

• Therefore, LEAs only need to provide additional information in the attachment:

– A description of the LEA’s attempts to receive written affirmation from the private school representatives who did not provide written affirmation


PS3502 – Part 8

Revised Attachment for Part 8:

• Previous version: Describe your consultation process

• New version: Describe the attempts you made to obtain written affirmation from the private school representatives

– Only report for those private schools that did not provide written affirmation


PS3502 Attachment for Part 8


BS6006 Budget Summary


BS6006 Budget SummaryRevisions:• Part 2 IDEA-B Preschool Entitlement

• Part 2 Maintenance of Effort (MOE) Voluntary Reduction section

• Part 2 Coordinated Early Intervening Services (CEIS) section

• Part 5 Professional and Contracted Services section


BS6006- Part 2 IDEA-B Preschool Entitlement

In the past:

• During Planning Phase, IDEA-B Preschool allocations indicated as Tentative Entitlement and calculated on:– Base only

• During Maximum Phase, IDEA-B Preschool allocations indicated as Maximum Entitlement and calculated on:– Base– Population– Poverty


BS6006- Part 2 IDEA-B Preschool Entitlement

New:

• During Planning Phase, IDEA-B Preschool allocations indicated as Maximum Entitlement and calculated on:– Percentage of base, population, and poverty

• During Maximum Phase, IDEA-B Preschool allocations indicated as Maximum Entitlement and calculated on:– Re-calculated base, population, and poverty based on final

amounts received from USDE


BS6006 – Part 2 IDEA-B Preschool Entitlement

• No changes to IDEA-B Formula calculation

• Will continue to be indicated as:– Tentative Entitlement during Planning Phase– Maximum Entitlement during Maximum Phase


BS6006 – Part 2 IDEA-B Preschool Entitlement – Previous


Maximum Phase: Entitlements listed as Maximum Entitlement for both IDEA-B Formula and IDEA-B Preschool

Planning Phase: Entitlements listed as Tentative Entitlement for bothIDEA-B Formula and IDEA-B Preschool

BS6006 – Part 2 IDEA-B Preschool Entitlement – NEW


Maximum Phase: Entitlements listed as Maximum Entitlement for both IDEA-B Formula and IDEA-B Preschool

Planning Phase: Entitlements listed as Tentative Entitlement forIDEA-B Formula and Maximum for IDEA-B Preschool

BS6006 – Part 2 MOE Reduction

Part 2 MOE Voluntary Reduction – Revised

Previous version:

– Only completed by those LEAs which chose to reduce MOE by up to 50% of the increase in entitlement



Part 2 MOE Voluntary Reduction – Revised

New version:

• Must be completed by all LEAs

• One of three choices must be selected:

– I did not meet the eligibility criteria to voluntarily reduce MOE for 2010-2011

– I was eligible to voluntarily reduce MOE for 2010-2011 but did not exercise this option

– I was eligible to voluntarily reduce MOE and exercised this option

• If this option is chosen, the LEA must report the actual dollar amount of the reduction



Part 2 MOE Voluntary Reduction – New version

• For the first member district, the fiscal agent must use the drop down arrow to select a member district

• After selecting the first member district and selecting one of the three choices, all additional member districts are to be added by selecting the “Add Member District” button

• When a new row is populated, the fiscal agent should then use the drop down arrow on the new row to select another member district


MOE Voluntary Reduction

Revised guidance is provided in the Program Guidelines and on the special education webpage at:

http://www.tea.state.tx.us/index2.aspx?id=2147499882


MOE Reduction – 2 Types

1. MOE Voluntary Reduction based on 50% of the increase in entitlement

– Eligibility criteria:

• Must have an increase in entitlement from previous year,

• Must have Meets Requirements determination,

and

• Must not have been identified with Significant Disproportionality


MOE Reduction – 2 Types2. MOE Reduction based on Exceptions

– Voluntary departure, by retirement or otherwise, or departure for just cause, of special education or related services personnel

– A decrease in the enrollment of children with disabilities

– The termination of the obligation…to provide a program of special education to a particular child with a disability that is an exceptionally costly program…

– The termination of costly expenditures for long-term purchases…

– The assumption of cost by the high cost fund


MOE Reduction – 2 Types

• Only MOE Voluntary Reduction amounts should be reported on the BS6006

• Do not report on the BS6006 MOE reductions due to MOE Exceptions or due to failure to maintain effort


MOE Reduction

• Relationship of MOE Voluntary Reduction and CEIS

– CEIS reserved in the year of the Voluntary MOE Reduction must be subtracted from the calculated amount of the MOE Reduction:

1. Determine the increase in entitlement2. Determine 50% of the increase3. Subtract CEIS4. The remainder is the amount the LEA may reduce

MOE if eligibility criteria is met

• Reminder: The freed-up funds must be spent on ESEA allowable activities during the year of the reduction


BS6006 – Part 2 CEIS

Revised – affects SSAs

• Previous version

– Fiscal agents of SSAs indicated CEIS as a total amount for the entire SSA

• New version

– Fiscal agents of SSAs must indicate CEIS amounts at the member district level for member districts that are reserving CEIS


BS6006 – Part 2 CEIS

Revised – affects SSAs

• For the first member district, the fiscal agent must use the drop down arrow to select a member district

• After selecting the first member district and entering the CEIS amount, all additional member districts are to be added by selecting the “Add Member District” button

• When a new row is populated, the fiscal agent should then use the drop down arrow on the new row to select another member district

• Do not select member districts that are not reserving CEIS funds


BS6006 – Part 5 6200Professional and Contracted Services


• Added “6299” to the title of Professional and Consulting Services

48

BS6006 – Part 5 6200

According to the Financial Accounting and Reporting (FAR) Module of the TEA Financial Accountability System Resource Guide (FASRG):

6219 (Professional Services) is to be used only for contracted professional services for:• Architecture• Optometry• Landscape architecture• Land surveying• Medicine• Accounting (other than audit services)• Professional engineering• Real estate appraising• Professional nursing

6299 (Miscellaneous Contracted Services) is the appropriate code for professional services related to special education


Program Guidelines


CEIS

Added:

• If an LEA reserves CEIS funds, but later decides not to use the funds, the LEA should submit an amendment to zero out the CEIS funds

– Any LEA with CEIS funds budgeted on their application will be required to submit the SC5100 CEIS Data Collection form to report the number of students served


CEIS

Reminder:

• Preschool funds may be reserved for CEIS purposes, but may not be used to serve preschool children

• Preschool CEIS funds may only be used to serve nondisabled, struggling students in grades K-12


CEIS

Added:

• CEIS funds may not be used for universal screening instruments that are used to screen all students

Reminder:

• CEIS funds may be used for:

– Professional development related to CEIS

– Providing educational and behavioral evaluations, services, and supports to students who are not currently identified as needing special education or related services, but who need additional academic and behavioral support to succeed in a general education environment


CEISAdded:

• Personnel 6100 or Contracted Services 6200:

– Positions that do not directly benefit nondisabled, struggling students, e.g., CEIS program evaluators or coordinators, are not allowable

• The LEA must report the number of students served by CEIS on the SC5100 CEIS Data Collection form;

• Therefore, positions funded with CEIS funds must directly serve nondisabled, struggling students


CEIS – Supplement Not SupplantAdded:

• CEIS funds may be used to carry out CEIS aligned with activities funded and carried out under the ESEA if those funds are used to supplement, and not supplant, funds made available under the ESEA for the activities and services assisted using CEIS funds



CEIS funds may not be used:

• To provide services that are otherwise required by Federal, State, or local law

– If a student is being served under a 504 plan and/or the district’s Dyslexia program, CEIS funds may not be used

* If a 504 student or a student with dyslexia (who is not identified as a student with a disability) is not currently being served under these plans

OR

the requested services are an enhancement to the existing services, CEIS funds may be used



CEIS funds may not be used:

• To provide services that were paid for with other funds in a prior year, including services that were paid with ESEA funds

*An LEA might be able to rebut these presumptions through the presentation of evidence that, even without CEIS funds, the other funds would not have been used in the current year for the activities now paid for with CEIS funds


Class/Object Codes

Reminder:

• The approval of budgeted costs in the application pertains only to the allowability of the activity and cost and not its accounting treatment

• For questions related to expenditure coding, please consult the Financial Accountability System Resource Guide (FASRG) located at:

http://www.tea.state.tx.us/index4.aspx?id=1222or contact the Division of School Financial Audits at 512-463-9095 for guidance

• Failure of the LEA to properly classify cost items may result in an unfavorable audit finding


Software

Added:

• LEAs may not obligate or expend grant funds for multi-year software subscriptions because these business arrangements provide a benefit for a period longer than the grant period


CurriculumAdded:

• Core curriculum used for all students may not be purchased with IDEA-B funds, even the portion that is being used by students with disabilities

• Credit recovery cost items are not allowable with IDEA-B funds


Reminder….• Any item that is used by all students may not be funded

with special education funds

• Any item that is used by all students may not be split-funded with special education funds

• Items used by all students must be funded by the fund source used for general education students

• Special education funds may only be used for items that are supplemental to those used by all students and/or address the unique needs of the child that results from the child’s disability


Amendments

The following always require specific approval so amendments are required if adding new cost items to these categories:

• 6100: All positions– Amendment required even if increasing quantity of previously approved position

• 6200: All pre-populated cost items – Includes contracted direct and related services

• 6300: All technology hardware and software

• 6400: All pre-populated cost items – For some pre-populated items, only charter schools must receive specific approval

• 6500: Always requires specific approval

• 6600: All capitalized cost items require specific approval– Amendment required even if increasing quantity of previously approved item

• CEIS: All CEIS cost items require specific approvalTEA|Division of IDEA Coordination May 2011 [Revised 5/10/11] 62

Amendments

Clarification on changing quantities of previously approved cost items:

• 6100: Any increase or decrease in the quantity of previously approved positions requires an amendment

• 6300: Any increase or decrease in the quantity of previously approved non-capitalized technology hardware or software does not require an amendment. Revised text in program guidelines

• 6600: Any increase in the quantity of previously approved capitalized cost items requires an amendment. Decreases in quantity do not require an amendment. TEA|Division of IDEA Coordination

May 2011 [Revised 5/10/11] 63

Amendments

Added text to Amendment sectionRemoving cost items from the application:

• Cost items may not be removed from the application during an amendment if funds (from the fund source on the application) have already been expended during the grant period.

• The cost item and amount of funds expended must remain on the application throughout the grant period.


SSA Configuration Changes

• SSA Contracts effective for the new school year (July 1) must be sent to IDEA Coordination by June 1 for the following:– Revised contracts for configuration changes– New contracts for newly formed SSAs

• TEA will not approve the Special Education Consolidated Grant application for the new school year until the contract is received


Schoolwide Programs

Added:

• Information related to schoolwide programs added to the program guidelines and to the special education webpage

http://www.tea.state.tx.us/index2.aspx?id=2147499894


Proportionate ShareAdded:

• If the LEA does not have proportionate share funds because no parentally-placed private school children with disabilities were identified the last Friday in October of the previous year, the LEA is not obligated to provide special education and/or related services to a new child during the year in which there are no proportionate share funds


Compensatory ServicesAdded to Allowable Activities and Use of Funds

section of the Program Guidelines:

• IDEA-B funds may be used to provide compensatory services

• Compensatory services are those services an LEA is required to provide due to the LEA’s failure to provide special education and/or related services


BusesAdded:

• LEAs may purchase adapted buses to meet the transportation needs of students with disabilities whose IEPs include transportation as a related service

• This bus should not be used to transport nondisabled students


BusesContinued:

• The IDEA does not require LEAs to transport children with disabilities in separate vehicles, isolated from their peers

• In fact, many children with disabilities can receive the same transportation provided to nondisabled children, consistent with LRE

• When the student with disabilities’ transportation needs can be met on the regular education bus, the student should not be placed on the special education bus simply because the child is disabled


BusesContinued:

• In limited circumstances, it is possible for a non-IDEA qualifying child to access an IDEA-B funded bus – See program guidelines for details

• Very strict circumstances apply

• LEAs must be careful that this exception is not used as a way to avoid cost allocations from other fund sources for transporting nondisabled children.

• If an LEA purchases a bus with IDEA-B funds to transport all children, the LEA would be in violation of the supplement, not supplant, requirements of IDEA


Passenger Vehicles – Revised text

• Passenger vehicles for transporting students with disabilities to and from school (including to and from community based instruction and/or to and from the RDSPD) are allowable

• A passenger vehicle is designed for carrying 10 persons or less

• Therefore, passenger vehicles purchased with IDEA-B funds must not exceed a seating capacity of 10 (excluding the driver)


Passenger Vehicles – continued

• If the LEA needs to transport more than 10 children, a bus must be used instead of a passenger vehicle

• A bus is designed for carrying more than 10 persons and meets the stringent school bus safety standards issued by the Federal government and recommended by the National Standards Conference on School Transportation


State Deaf Funds

NEW:

• Administrative costs for secretaries and teacher supervisors for deaf services are allowable with State Deaf funds

• Reminder: Administrative costs are not allowable with IDEA-B fund sources


SC5100 CEIS Data Collection Form


SC5100 CEIS Data Collection Form

Added an additional year of data collection

• 2011-2012 SC5100 CEIS Data Collection form:

– Line a: Number of students served by CEIS during 2010-2011

– Line b: Number of students served by CEIS during 2010-2011 AND subsequently received special education and/or related services in 2010-2011

– Line c: Number of students served by CEIS during 2009-2010 AND subsequently received special education and/or related services in 2010-2011

– NEW Line d: Number of students served by CEIS during 2008-2009 AND subsequently received special education and/or related services in 2010-2011


Program Guidelines Related to SC5100

Example given for data collection for three years:

If nondisabled, struggling students receive CEIS in 2009-2010:

• First Year Submission - 2010-2011 SC5100:

– Report on Row “a” the number of students who received CEIS in 2009-2010

– Report on Row “b” the number of those students in Row “a” who subsequently received special education and/or related services in 2009-2010


SC5100 Example continued• Second Year Submission - 2011-2012 SC5100

– Report on Row “c” the number of those students who received CEIS in 2009-2010 and subsequently received special education and/or related services in 2010-2011

– Do not report the students who received special education and/or related services in 2009-2010 since they were reported on the previous year’s SC5100

– Only report those students who received CEIS in 2009-2010 and FIRST began receiving special education and/or related services in 2010-2011


SC5100 Example continued• Third Year Submission – 2012-2013 SC5100

– Report on Row “d” the number of those students who received CEIS in 2009-2010 and subsequently received special education and/or related services in 2011-2012

– Do not report students who received special education and/or related services in 2009-2010 or 2010-2011 since they were reported in the previous years’ SC5100s

– Only report those students who received CEIS in 2009-2010 and FIRST began receiving special education and/or related services in 2011-2012


Questions?

Contact the Division of IDEA Coordination

• Phone: 512-463-9414– Ask for a member of the funding team

• Email: [email protected]


PPCD Update on LRE and PreK Alignment

Regional Day School Program for the Deaf

TCASE Update

Special Education Planning CommitteeOctober 13 -14, 2011

Announcements/ To Do List

Lunchand

Networkingand

TETN

Special Education Leadership Network Meeting May 12, 2011

Documents

Transcript of Special Education Leadership Network Meeting May 12, 2011