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Special Education Leadership Network Meeting May 12, 2011

Special Education Leadership Network Meeting May 12, 2011. Private Placement Cases: A Lesson from the 8 th Circuit. Evelyn 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?

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Special Education Leadership Network Meeting May 12, 2011

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  1. Special Education Leadership Network MeetingMay 12, 2011

  2. Private Placement Cases: A Lesson from the 8th Circuit Evelyn Howard-Hand Walsh, Anderson, Brown, Gallegos and Green, P.C.

  3. 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.

  4. 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.

  5. 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.

  6. 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.

  7. 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.

  8. 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.

  9. Groves School • Parents enroll C.B. in the Groves School for 6th grade. • Parents ask school to pay for this. • School says no. • Litigation.

  10. 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……

  11. 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.

  12. 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.”

  13. 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.

  14. 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.”

  15. 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.

  16. 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.

  17. The Case • C.B. v. Special School District No. 1, Minneapolis, Minnesota, 111 LRP 28683 • 8th Circuit • April 21, 2011

  18. Contact • Evelyn Howard-Hand • Walsh, Anderson, Brown, Gallegos and Green, P.C. • ehand@wabsa.com • www.walshanderson.com • Austin, Texas

  19. Special Education Consolidated Grant ApplicationandProgram GuidelinesRevisions for 2011-2012 TEA|Division of IDEA Coordination May 2011

  20. PS3502 Private Schools Participation Form TEA|Division of IDEA Coordination May 2011 [Revised 5/10/11]

  21. PS3502 Private Schools Participation Form Revisions: • Part 6 Children Served section • Part 8 Documentation of the Consultation Process section - Attachment TEA|Division of IDEA Coordination May 2011 [Revised 5/10/11]

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

  23. PS3502 – Part 2 Part 2 Children Evaluated: The number of parentally-placed private school children aged 3 through 21 evaluated July 1, 2010 through June 30, 2011 TEA|Division of IDEA Coordination May 2011 [Revised 5/10/11]

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

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

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

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

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

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

  30. PS3502 Attachment for Part 8 TEA|Division of IDEA Coordination May 2011 [Revised 5/10/11]

  31. BS6006 Budget Summary TEA|Division of IDEA Coordination May 2011 [Revised 5/10/11]

  32. BS6006 Budget Summary Revisions: • 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 TEA|Division of IDEA Coordination May 2011 [Revised 5/10/11]

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

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

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

  36. BS6006 – Part 2 IDEA-B Preschool Entitlement – Previous Planning Phase: Entitlements listed as Tentative Entitlement for both IDEA-B Formula and IDEA-B Preschool Maximum Phase: Entitlements listed as Maximum Entitlement for both IDEA-B Formula and IDEA-B Preschool TEA|Division of IDEA Coordination May 2011 [Revised 5/10/11]

  37. BS6006 – Part 2 IDEA-B Preschool Entitlement – NEW Planning Phase: Entitlements listed as Tentative Entitlement for IDEA-B Formula and Maximum for IDEA-B Preschool Maximum Phase: Entitlements listed as Maximum Entitlement for both IDEA-B Formula and IDEA-B Preschool TEA|Division of IDEA Coordination May 2011 [Revised 5/10/11]

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

  39. BS6006 – Part 2 MOE Reduction 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 TEA|Division of IDEA Coordination May 2011 [Revised 5/10/11]

  40. BS6006 – Part 2 MOE 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 TEA|Division of IDEA Coordination May 2011 [Revised 5/10/11]

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

  42. MOE Reduction – 2 Types • 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 TEA|Division of IDEA Coordination May 2011 [Revised 5/10/11]

  43. MOE Reduction – 2 Types • 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 TEA|Division of IDEA Coordination May 2011 [Revised 5/10/11]

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

  45. 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: • Determine the increase in entitlement • Determine 50% of the increase • Subtract CEIS • 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 TEA|Division of IDEA Coordination May 2011 [Revised 5/10/11]

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

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

  48. BS6006 – Part 5 6200Professional and Contracted Services • Added “6299” to the title of Professional and Consulting Services TEA|Division of IDEA Coordination May 2011 [Revised 5/10/11]

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

  50. Program Guidelines TEA|Division of IDEA Coordination May 2011 [Revised 5/10/11]

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