TIFFANY R. WINTERS, ESQ. BONNIE LITTLE, ESQ. TWINTERS@BRUMAN.COM BLITTLE@BRUMAN.COM

BRUSTEIN & MANASEVIT, PLLC SPRING FORUM 2011

IDEA: Top OSEP Monitoring Priorities

OSEP ARRA Monitoring

• Using the ARRA Monitoring Inventory (AMI), OSEP will monitor all States receiving ARRA IDEA funds by 12/31/2011:

Existing information (websites, 1512 reports, verification reports etc.)

Additional documentation requested by OSEP

Phone interviews/some on-site visits

Follow up with a response summarizing the review and any identified issues.

2

OSEP is Coming!

• Be prepared:• (1) Organizational meeting• (2) Select main OSEP visit contact• (3) Select main interview contacts• (4) Select meeting place• (5) Complete AMI / CrEAG documents• (6) Organize documentation• (7) Mock verification visit• (8) Review findings from your state• (9) Be prepared to address noncompliance• (10) Review OSEP verification reports

3

Areas to Focus OnAreas to Focus On

Oversight of ARRA IDEA funds• Data reporting• Subrecipient monitoring

Significant Disproportionality and CEISFiscal Management• Use of funds• Internal controls• Timely Obligation and Liquidation• MOE

4

5

Data Collection System

Public, Timely, Valid and Reliable Data DATA QUALITY! Automatic Error Checking

Guidance by State on Reporting Procedures

Procedures to Ensure Individuals Report Data Accurately Training Personnel Review of Reported Data

Identify Abnormalities and Correct Inaccuracies?

6

Data Reporting

Types of Data ReportsAnnual Performance ReportsSection 1512 Reporting

1512 subrecipient and vendor reports provide a window into how ARRA/IDEA funds are drawn down and expended

Subrecipient vendor reports Provide details that are not normally accessible

Monitoring reports

7

Data Reporting

Use data reports to identify areas of noncompliance, in addition to fiscal or ARRA specific issues Timeliness of initial evaluations and determinations of

eligibility Part C to Part B transition Secondary transition services Correction of noncompliance Timeliness of resolution of state complaints Timeliness of fully adjudicated due process hearings State reported data is timely and accurate

8

Deadlines!!

9

Initial Evaluation

Initial Evaluations: within 60 days of receiving parental consent (unless State has different timeframe) Exceptions:

The parent repeatedly fails or refuses to produce the child for the evaluation.

The child enrolls in a school of another public agency and parent and the subsequent public agency are making progress to ensure completion of the evaluation.

Consent Reasonable efforts and parents refuse or fail to

respond – can override. DOCUMENT Reasonable Efforts!!!!

Calling, Letters, E-mails, Visits to Parent’s Home and/or Work.

10

Reevaluation

Reevaluation: Every 3 years No FAPE violation if refuse more then 1 per

year

Consent Reasonable efforts and parents refuse – can

override Reasonable efforts and parents fail to respond

– consent not required

No FAPE violation if don’t override consent!

11

Transitions

Part C to B TransitionChildren served under Part C and referred to Part B for

eligibility determination who are found eligible must have an IEP developed and implemented by their third birthday Part C program provides “early intervention services” to infants

and toddlers with disabilities (under 3)Exceptions:

Referred to Part B and found NOT eligible Parent refusal to provide consent Referred to Part C less than 90 days before third birthday

Secondary TransitionYouth 16 and above must have measurable

postsecondary goals, annually updated, based on a transition assessment, transition services, and IEP goals related to the student’s transition services needs

12

Due Process Procedures

Adopt Part B Procedures May adopt Part B’s 45 day timeline for reaching a

final decision

orCreate own procedures

Impartial Hearing Officer Parents due process rights Written decisions due in 30 days of receipt of

complaint!

13

Due Process Timeframes v. Expedited Hearing

Day 1 Due Process Complaint Expedited Due Process Complaint

Day 7 Resolution Meeting (Calendar)

Day 10 Answer Complaint

Day 15 Make Allegation that Complaint is InsufficientResolution Meeting

If Allegations not Resolved – Hearing goes forward

Day 20 If Alleged: Determination if Complaint is Insufficient

Hearing(School Days)

Day 30 If Allegations not Resolved – Hearing goes forwardIf Parent Not Involved – LEA can Make Motion to Dismiss

Final Determination Due (School Days)

Prior to Hearing

5-Day Disclosure DueDecision within 45 days

14

Resolution Meetings

Must occur within 15 days of notice of complaint. Attorney for the LEA cannot attend unless parent’s

attorney is also present If after reasonable efforts (documented), the LEA is

unable to obtain the participation of the Parent, the LEA may (at the end of the 30-day period), request that the hearing officer dismiss the parent’s due process complaint!

If LEA fails to schedule a resolution meeting, parent can ask for intervention!

Meeting notes are not confidential Settlement agreement can be voided up to 3 days

after it is signed 34 C.F.R. § 300.510

15

State Complaints

State complaints must be completed within 60 days! Includes completing on-site investigation, if

necessary Complainant given opportunity to submit

additional information Review information and make independent

determination Written decision includes findings of fact

and conclusions of law

If allegations already decided in due process case the due process decision is binding!

16

Extensions

State Complaints Time extensions only allowed:

(1) in “exceptional circumstances”; or (2) parties voluntarily engage in mediation or other alternative dispute

resolution mechanisms, if available in the state, to resolve the complaint 34 CFR 300.152

Due Process Complaints Time extensions allowed if:

(1) Requested by either party; (2) Granted by the hearing officer; and (3) Specify either the length of the extension or the new date by which

the decision must be reached 34 CFR 300.515(a)

Parties may agree to extend the 30-day resolution period Does not require hearing officer involvement or approval BUT - cannot agree to extend the resolution period for expedited

complaint

17

18

Subrecipient Monitoring

Methods of identifying noncompliance Self-assessments Onsite monitoring

Cyclical v Risk-based Data review

Disproportionate representationTypes of noncompliance

Student-level findings Systemic findings

Are there controls to ensure funds are used in accordance with IDEA and ARRA requirements? Section 1512 reporting requirements Competitively bid, fixed-price contracts Progress toward meeting ARRA principles

19

Correction of Noncompliance

OSEP Memo 09-02Written notification of noncomplianceCorrection within one year of written

notificationDemonstrating Correction

Verify the LEA/school is: (1) correctly implementing the specific regulatory

requirements; and (2) has corrected each individual case of noncompliance

Exception: child is no longer within jurisdiction of LEA/school

20

Correction of Noncompliance

OSEP Memo 09-02Demonstrating Correction

Account for all instances of noncompliance identified Monitoring/self-assessment Review of data USDE identified noncompliance

Identify where noncompliance occurred, % of noncompliance and the “root cause(s)” of the noncompliance Student level or systemic

Revise policies and/or practices as appropriate Follow-up with onsite visit and/or review of updated data

21

Significant Disproportionality

Each State must collect and examine data to determine if significant disproportionality based on race and ethnicity is occurring with respect to: The identification of children as children with disabilities,

including the identification of children as children with disabilities in accordance with a particular impairment described in section 602(3) of the Act;

The placement in particular educational settings of these children; and

The incidence, duration, and type of disciplinary actions, including suspensions and expulsion.

Recent finding by OSEP: Definition is too restrictive so that no districts are identified as significantly disproportionate!

23

Coordinated Early Intervening Services (CEIS)

• Set-aside up to 15% of Part B allocation to develop & implement coordinated CEIS: ▫ 15% Required if Significantly Disproportionate!!

(Defined by the SEA)

• Eligibility:▫ Students who are NOT currently identified, and▫ Who need additional academic and behavioral

support to succeed in a general education environment

▫ For students in kindergarten through Grade 12 (focus on K-3rd Grade) ▫ May be used in RTI system (depending on level)

24

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

25

Response to Intervention (RTI)

RTI strategies are tools that enable educators to target instructional interventions to children’s areas of specific need as those needs become apparent. To assist in the identification of students with

specific learning disabilities (SLD)

Predicts At Risk studentsDesigned to avoid identification of “disabled”

studentsProvides a tiered system of individualized

scientific research based interventions

26

RTI (cont.)

If you use RTI Strategies, LEAs must promptly request parental consent to evaluate a child if the child has not made adequate progress after an appropriate period of time. However, the regulations do not specify a timeline for

using RTI or define “adequate progress.” ED says it varies on the specific circumstances Generally not acceptable to wait several months A State may choose to establish a specific

timeline Parent may request an evaluation at any time!

27

Response to Intervention (RTI)28

29

Use of Funds

Are there procedures reasonably designed to ensure appropriate use of regular and ARRA IDEA funds and at LEA level? Meeting IDEA program rules? Meeting IDEA fiscal rules? Meeting ARRA-specific requirements? Are all costs allowable? How does SEA/LEA ensure allowability?

Proper Documentation? Proper Procurement System? Proper Inventory Management System?

30

Use of Funds - Allowable Cost Questions

Is the proposed cost consistent with federal cost principles? OMB Circulars A-21 Educational Institutions OMB Circulars A-87 State, Local & Indian Tribal

Governments OMB Circulars A-122 Non-Profit Organizations

Is the proposed cost consistent with EDGAR?Is the proposed cost allowable under IDEA

program and fiscal rules?Is the proposed cost consistent with ARRA-

specific requirements, including requirements related to reporting and infrastructure investments?

31

Supplement Not Supplant

Part B funds must be used to supplement State, local, and other Federal funds,

not to supplant those funds.

Designed to ensure Part B

funds pay for something “extra.”

32

Supplement Not Supplant (cont.)

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

33

Use of Funds- Distribution for Equitable Participation Services

Number of eligible parentally-placed private

school CWDs_______________________________________

Total number of eligible CWDs in the LEA (public

and private)

=% of LEA IDEA Part B Grant

for Equitable Services to Parentally-Placed CWDs

Equitable Services Set-Aside Including IDEA regular and ARRA IDEA funds Plus any unused carryover from previous year. §

300.133(a)(3)

34

MUST MAINTAIN CONTROLMUST MAINTAIN CONTROL

Control over funds No Reimbursement

Control over Property Tags District Inventory District Property Receipt

Control over Program Decisions Subject to Consultation Monitoring

An LEA must control and administer funds used to provide equitable participation services and hold title to and administer materials, equipment, and property purchased with those funds, under 34 CFR 300.137 - 300.139

Equitable Participation Services (cont.)

35

Internal Controls

EDGAR Procurement Rules

Section 80.36 of EDGARAll procurement transactions must be

conducted with full and open competition Follow Procurement Rules

IDEA (B) requires preapproval for Equipment Purchases! IDEA definition includes instructional equipment,

books, periodicals, documents, and other related materials OSEP creating definition of special education

expenditure??

37

Equipment Rules

Section 80.32 of EDGARMust have adequate controls in place to account for:

Location of equipment Custody of equipment Security of equipment

Property records Description, serial number or other ID, title information,

acquisition date, cost, percent of federal participation, location, use and condition, and disposition (if applicable)

Physical inventory Must be performed at least every 2 years

Control system to prevent loss, damage and theft All incidents must be investigated

38

Equipment

Must protect against unauthorized use May use for other projects as long as use is

incidental and does not interfere with authorized use

When property is no longer needed, must follow disposition rules:

Transfer to another federal program Over $5,000 – Keep or sell, but must pay a share

based on the percentage of federal ED participation at initial acquisition

Under $5,000 – May keep, sell, or dispose of it with no obligation to ED

39

Timely Obligations

Regular IDEA Funds:Initial Period of Availability 15 months (July 1st –

September 30th) Can cut Period of Obligation Short (GEPA Section 421(b))???

Carryover – Additional 12 months (Tydings Amendment) Watch High Carryover!

Liquidation – up to 90 days (usually between October 1st – December 30th)

ARRA IDEA Funds:States and LEAs must obligate ARRA IDEA funds by

September 30, 2011

41

Timely Obligations (cont.)

Linking Funds – Obligation occurs on February 1, 2011 Available funds include:

ARRA 2009 Funds (available 2/17/09 – 9/30/11) 2009-2010 Funds (available 7/01/09 – 9/30/11) 2010-2011 Funds (available 7/01/10 – 9/30/12)

2011 – 2012 Funds – become available 7/01/11 – 9/30/13

But keep in mind the concept of allocability Watch Set-asides (Proportionate Share)

42

Timely Obligations (cont.)

Reimbursement versus Cash Advance

Cash Management Improvement Act (CMIA) Three days between drawdown and payment After 72 hours, interest starts to accrue Any amount of interest over $100 must be remitted at

least quarterly

43

Keep It Up!Keep It Up!

State and Local Maintenance of Effort

44

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 be able to use ARRA Stabilization funds towards SEA MOE requirements!

45

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.

46

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 to 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

47

State MOE Waiver (cont.)

SEA MOE Waivers Requested:Iowa (Requested Jan 2010)

Requested reduction of 7.25% ED Response (April 2010)

ED found State decrease of SPED funds 8.4% with average State cuts of 14.75%

Waiver Granted Will request repayment by the SEA if any LEAs fail to meet

MOEWest Virginia (Requested March 2010)

Requested reduction of 2% ED Response July 2010

ED found average State cuts of 5.8% with decreased State revenues of 7%

Waiver Granted Will request repayment by the SEA if any LEAs fail to meet

MOE.

48

State MOE Waiver (cont.)

SEA MOE Waivers Requested:Kansas (Requested May 2009)

Requested reduction of 14.07% from FY 09 to FY10 Ed Response (March 2010)

State reduction was only 10.4% (ED found State’s budget did not treat SPED programs in an equitable manner when compared with other State programs

Waiver Partially Granted - only 10.4% reduction Will request repayment by the SEA if any LEAs fail to meet

MOE Kansas Amendment Waiver Request (June 2010)

Showing reduction of State funds of 12.3% ED Response (October 2010)

Partial Waiver Granted – 12.3% reduction

49

State MOE Waiver (cont.)

SEA MOE Waivers Requested:South Carolina (Requested Feb 2010) - Pending

Very general request for “across-the-board reduction”

New Jersey (Requested Sept 2010) - Pending Reduction requested of 2.1%. Reduction of State SPED

funding equaled 4.2%. (Average State reduction 6.9% - with 6.2% reduction in overall state aid to school districts)

Alabama (N0 Date on Request)– Pending Letter general – seems to request 9.5% reduction for

general reduction in appropriations

Oregon (Requested March 2011) – Pending Very detailed request – approximately 4.48% reduction

50

Failure to Meet State MOE

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!

51

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))

52

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. (IDEA Regs Section 300.203(b))

53

Local-level MOE Reductions

Allowable reductions:1.Voluntary departure of special education or related

services personnel2.A decrease in the enrollment of children with

disabilities3.The assumption of cost by the SEA’s high cost fund4.The termination of the agency’s Part B obligation to

provide a program to a particular child with a disability that was exceptionally costly because the 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 C.F.R. § 300.204.

54

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 next year’s MOE as well!▫ SEA must report on any use of freed-up funds.

55

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”.

56

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).

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

57

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.)

58

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 client-lawyer 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.

59