TIFFANY R. WINTERS, ESQ. [email protected] BONNIE LITTLE GRAHAM, ESQ. [email protected] BRUSTEIN & MANASEVIT, PLLC FALL FORUM 2012 [email protected]

TIFFANY R. WINTERS, [email protected] LITTLE GRAHAM, [email protected] & MANASEVIT, PLLCFALL FORUM 2012

Fiscal Allowability and Flexibility Updates Under IDEA

AGENDA

- ESEA Flexibility

- Allowability

- Time and Effort Reporting

- Maintenance of Effort Updates

- Supplanting, CEIS and RTI

2BRUSTEIN & MANASEVIT, PLLC

ESEA

WAIV

ER A

FFEC

T

ON IDEA

ESEA FLEXIBILITY

• Does this flexibility affect the rights of a student with a disability to a free appropriate public education (FAPE) in accordance with the student’s individualized education program (IEP) as required by Part B of the Individuals with Disabilities Education Act (IDEA) or FAPE as required by Section 504 of the Rehabilitation Act of 1973 (Section 504)?


ESEA FLEXIBILITY (CONT.)

No!!

• Nothing in the ESEA flexibility affects an SEA’s or LEA’s responsibility to provide FAPE to a student with a disability in accordance with the student’s IEP or as required by Section 504.

• If required under an IEP or Section 504 Plan, services or activities that an LEA/school is providing pursuant to its identification for improvement under ESEA section 1116, must continue even when the LEA and its schools are no longer in improvement status.

• Although a student’s IEP or 504 plan may be modified those revisions must ensure that the student will continue to receive FAPE.

(Modified August 3, 2012)


IDEA

ALL

OWABIL

ITY

RULES

ALLOWABLE USES OF FUNDS UNDER IDEA

Child Find Obligation Staff Trainings Evaluations

IEP Services Special Education Coordinator Service Providers Special Education Teachers Equipment and Supplies

Coordinated Early Intervening Services


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)

34 CFR 300.226


SPP UNIVERSITY AND FISCAL 101 BETA TEST FEEDBACK SUBMISSION

Fiscal 101 For Part B: Understanding IDEA Funding Requirements

4 Courses:

1. Introduction and Overview of Part B

2. Federal Fiscal Requirements

3. Timely Obligation, Liquidation, and Distribution of Federal Funds

4. Ensuring the Allowable Use of Federal Funds at the State Level and Summary

http://www.sppuniversity.org/


ALLOWABILITY ACCORDING TO SPPU…

Advisory Councils? YES

Audit Costs and Related Services? YES

Attorneys’ Fees to the Attorneys of a Prevailing Parent in Due Process? YES

Entertainment Costs? NO

Lobbying? NO

Professional Services Costs? YES

Rearrangement and Alteration of Facilities Costs? YES

Taxes? YES

Training Costs? YES

Travel Costs for Personal Business? NO


ATTORNEYS’ FEES – NOT ALLOWABLE!!!

34 C.F.R. § 300.517

Funds Under Part B of the Act may not be used to pay attorneys’ fees or costs of a party related to any action or proceeding under section 615 of the Act and subpart E of this Part.

• Section 615 – Procedural Safeguards Section (includes due process hearings)

• Subpart E – Procedural Safeguards (includes due process hearings)


EDGAR PROCUREMENT RULES SECTION 80.36

All procurement transactions must be

conducted with full and open competition Follow Your Procurement Rules!!

IDEA (B) requires preapproval for Equipment Purchases! (34 CFR 300.718)

IDEA definition includes instructional equipment, books, periodicals, documents, and other related materials

ARRA IDEA Guidance uses EDGAR definition for pre-approval

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BRUSTEIN & MANASEVIT, PLLC

PROCUREMENT ACCORDING TO SPPU…

In many cases, files lack documentation:• Didn’t check whether vendor was suspended or debarred;

• Sole source purchase without justification;

• Purchase over $5,000 was made without grantor approval, etc.

Prove:• Purchase was allowable;

• Result would have been the same had the proper procedures been followed;

• No harm to the federal interest; and

• Evidence that the same process errors are not recurring.


TIM

E AND E

FFORT

DOCUMEN

TATI

ON

OMB CIRCULAR A-87 FEDERAL COST PRINCIPLES

•43 Specific Items of Costs detailed (alphabetical order)

• Example: Salaries and Wages

Allowable if proper time distribution recordsSingle Cost Objective: Semi-annual certificationMultiple Cost Objectives: PAR Report


WHO MUST PARTICIPATE?

Any employee who is working on a federal program◦ Not contractors

◦ All employees paid with federal funds

◦ Some employees paid with non-federal funds

BRUSTEIN & MANASEVIT, PLLC 16

TIME AND EFFORT ACCORDING TO SPPU…“Time and Effort is what is commonly referred to

as a “cross-cutting” finding, … but it can also occur in situations that involve employees who

are paid solely out of IDEA funds..”

• If the employee works on more than one grant award, then there must be personnel activity reports.

Getting Closer!


PERSONNEL COSTS

Type of documentation depends on how many “cost objectives” the employee worked on

These cost objectives must be connected to the employee’s salary source

What is a cost objective?A specific grant award, or other category of costs, that requires the grantee to track specific cost information


LEA-Level•Administration (as applicable)•IDEA Part B program•Coordinated Early Intervening Services (CEIS)•Equitable Services Proportionate Share

SEA-Level•IDEA Part B State-level Administration for Part B•IDEA Part B State Administration for Part C•Other State-level activities

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IDEA, PART B COST OBJECTIVES


NEW T

IME A

ND EFF

ORT

GUIDANCE B

Y OCFO

!!

http://www2.ed.gov/policy/fund/guid/gposbul/time-and-effort-reporting.html


OCFO GUIDANCE

• It is possible for multiple programs to have the same cost objective, which creates confusion over whether the presence of a single cost objective or being funded by multiple programs should determine what time-and-effort documentation and employee must complete.


OCFO GUIDANCE (CONT.)

• It is possible to work on a single cost objective even if an employee works on more than one Federal award or on a Federal award and a non-Federal award.

The key to determining whether it is a single cost objective is whether the employee’s salary and wages can be supported in full from each of the Federal awards on which

the employee is working or from the Federal award along if the employee’s salary is also

paid with non-Federal funds.


IDEA OCFO GUIDANCE EXAMPLES OF SINGLE COST OBJECTIVES:

Funds under Sections 611 and 619 of the Individuals with Disabilities Education Act (IDEA)• A preschool special education teacher is funded with 50 percent IDEA section 611 funds and 50 percent with IDEA section 619 funds. • Teaching preschool special education is an allowable activity under both IDEA sections 611 and 619. • Accordingly, the teacher is performing a single cost objective even though she is supported with funds from two separate Federal awards; therefore, she need only file a semiannual certification.


IDEA OCFO GUIDANCE EXAMPLES OF SINGLE COST OBJECTIVES:

Title I, Part A funds and CEIS (comprehensive early intervening services) funds under IDEA

• A teacher works with low-achieving students and is supported with 60 percent Title I, A funds and 40 percent CEIS funds.

• Teaching low-achieving students is a single cost objective because it can be fully supported under both Title I, A and CEIS.

• Only a semiannual certification, therefore, is required even though the employee’s salary is supported by two Federal awards.


TIME AND EFFORT QUESTIONS

• A special education teacher spends 100% of her time working with students with disabilities, but is paid 50% with IDEA, Part B funds and 50% with State funds.

Semi-annual or PAR??



• A general education teacher provides coordinated early intervening services (CEIS) in 3 out of her 7 classes this year.




• A general education teacher provides coordinated early intervening services (CEIS) one day when the CEIS teacher is absent.




• A school counselor spends 25% of her time providing general counseling services and 75% of her time providing counseling services under IEPs.



IDEA

, PART

B STA

TE A

ND

LOCAL

MAIN

TENANCE

OF

EFFO

RT


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

• Compute how much is spent each year on special education and related services

• Monitor spending for children with IEPs by other state agencies

• Include a grand total for the application

Previously, States only affirmed that they were in compliance with MOE requirements


STATE MOE WAIVERIDEA 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


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 of 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


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! 34BRUSTEIN & MANASEVIT, PLLC

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)) 35BRUSTEIN & MANASEVIT, PLLC

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))


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. 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.

(IDEA Regs Section 300.204)


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!


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”.


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!



• 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 )

Up to SEA to recover funds from LEA.



Consequences for violation:

The LEA’s 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 www.bruman.com

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???


SUPPLEM

ENT

NOT

SUPPLANT


IDEA, PART C MOE/SNS

Under Part C, the lead agency meets the Supplement Not Supplant requirement if it meets MOE:

The total amount of State and local funds budgeted for expenditure in the current fiscal year for early intervention services must be at least equal to the total amount of state and local funds actually expended for early intervention services in the most recent preceding fiscal year for which information is available.

.

No Waiver Authority.

Notice of Proposed Rulemaking to address Part C MOE/SNS flexibility??


TREATMENT OF FUNDS - IDEA PART C

• Federal Funds: Reimbursements from federal finds (e.g., Medicaid) is not “state and local” funds for purposes of MOE. Section 303.520(d)(2)

• Private Insurance: Private insurance is not considered State or local funds for MOE purposes. Section 303.520(d)(3)• However, if a State has enacted a statute regarding the

use of private health insurance coverage to pay for early intervention services under Part C, the State may reestablish a new baseline of State and local expenditures in the next Federal fiscal year following the effective date of the statute. Section 303.520(b).

• Family Fees: Funds from a parent or family member under the State’s system of payments established under §303.521 are considered program income under 34 CFR 80.25. These funds are considered neither State nor local funds for MOE purposes under §303.225(b). Sections 303.520(e) and 303.521(d)(2) .


SEA SUPPLEMENT NOT SUPPLANT


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), fund provided to an LEA may be used for:

• Services and aids that also benefit nondisabled children• Early intervening services• High cost special education and related services

34 CFR 300.20848BRUSTEIN & MANASEVIT, PLLC

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


SUPPLEMENT NOT SUPPLANT (CONT.)

50

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


CHARTER S

CHOOLS A

ND

IDEA


CHARTER SCHOOLS – WITHIN THE DISTRICT

Charter schools that are public schools within the LEA. The LEA must:• Serve students and provide supplementary and related services onsite to the same extent as the policy or practice of providing services to other public schools; and• Provide funds to charter schools• On the same basis as other public schools, and• At the same time

34 CFR 300.209(b) 52BRUSTEIN & MANASEVIT, PLLC

CHARTER SCHOOLS - LEA

Public charter schools that are LEAs: The charter school is responsible for ensuring that the requirements of IDEA are met, unless state law assigns the responsibility to some other entity. 34 CFR 300.209(c).

• Local educational agency or LEA means a public board of education or other public authority legally constituted within a State for either administrative control or direction of, or to perform a service function for, public elementary or secondary schools in a city, county, township, school district, or other political subdivision of a State, or for a combination of school districts or counties as are recognized in a State as an administrative agency for its public elementary schools or secondary schools. 34 CFR 300.28.


CHARTER SCHOOLS - OTHER

Public charter schools that are not an LEA or a school that is part of an LEA.

• If the public charter school is not an LEA receiving funding under Sec. 300.705, or a school that is part of an LEA receiving funding under Sec. 300.705, the SEA is responsible for ensuring that the requirements of this part are met.

34 CFR 300.209(d)


CHARTER SCHOOL FUNDINGLEA Charter schools:

•State must allocate IDEA funds to all eligible LEAs, including public charter school LEAs, according to 300.705: base payment plus remaining (85% based on CWDs and 15% based on poverty)• The SEA must ensure that any opening or significantly

expanding charter school district, (including any statewide charter school district) receives its allocation within five months of the date the charter school district opens or significantly expands its enrollment. 34 CFR 76.793.

Charter schools within LEA:

•LEA must allocate funds consistent with local policies and practices, similar to any other public school.

Other charter schools: “SEA responsibility”???


56

Questions?


DisclaimerThis 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.


Documents

TIFFANY R. WINTERS, ESQ. [email protected] BONNIE LITTLE GRAHAM, ESQ. [email protected] BRUSTEIN & MANASEVIT, PLLC FALL FORUM 2012 [email protected]