On March 29, 2007, the Department of Public Instruction (DPI) received a complaint under state and federal special education law from XXXXX against the Madison Metropolitan School District (MMSD). This is the departments decision regarding that complaint. The issues are whether the district, during the 2006-2007 school year:
- Properly consulted with private school representatives of parentally placed private school children with disabilities in determining the proportionate share of Federal funds available to serve parentally placed private school children with disabilities served in the district; during the design and development of special education and related services regarding how, where, and by whom special education and related services will be provided; if the district disagrees with the views of the private school officials on the provision of services or the types of services, how the district will provide to the private school officials a written explanation of the reasons why the district chose not to provide services; and
- Properly initiated and conducted meetings to develop, review, or revise a services plan for a child placed by his parents in a private school.
The parents allege the MMSD violates the Individuals with Disabilities Education Act (IDEA) by failing to provide their child with the orientation and mobility (O&M) training needed to preserve the childs safety. The child who is the subject of this complaint is a parentally placed private school student with a disability attending a private school located in the MMSD. The parents reside in a neighboring school district. Prior to the passage of IDEA 2004, the school district of residence was responsible for providing equitable services for parentally placed private school students with disabilities. With the passage of IDEA 2004, responsibility for equitable services shifted to the school district where the private school is located, in this case the MMSD. As a parentally placed private school student, the child received O&M training from the school district of residence prior to this law change. However, the MMSD does not provide O&M training to parentally placed private school students.
Parentally placed private school students do not have an individual right to receive some or all of the special education and related services they would receive if enrolled in the public schools. Under the IDEA, a school district is obligated to provide parentally placed private school students as a group an opportunity for equitable participation in the special education services it has determined, after conducting the required consultations, to make available. A school district is neither required to provide services to every parentally placed private school student with a disability nor to spend a certain amount on each of these students who are served. The IDEA does not require MMSD to provide O&M services to the complainants child.
The parents contend the childs services are not equitable. They state their child is one of three children with low incidence disabilities for whom the MMSD expends $13,523 on itinerant hearing and vision services. They contend in order for the MMSD to meet the IDEAs equitable participation requirement, the school district should expend approximately one-third of these funds on services for their child. A school district is required to expend a proportionate share of its IDEA funds on equitable services for parentally placed private school students as a group. The MMSD is not required by the IDEA to allocate a particular amount of funds for equitable services for the complainants child.
The parents allege the MMSD did not spend a proportionate amount of its IDEA funds on services for parentally placed private school students with disabilities. In January 2007, the parents received an estimate from the MMSD that it would expend $101,653 on equitable services during the 2006-2007 school year. The district estimated it would spend $13,523 on consultation provided by itinerant vision and hearing teachers for three students and $88,130 on speech and language pathology services for 46 students. For the childs parents, the estimated expenditure for itinerant vision and hearing services raised a question about the credibility of the districts statements regarding its expenditures for equitable services.
During the 2006-2007 school year, MMSD was required to expend at least $78,842.99 for equitable services. The department requested from MMSD personnel activity reports for teachers who provided equitable services for the 2006-2007 school year. The MMSD was not able to provide this documentation. While MMSD requires staff to record personnel activity for funding of school-based services through the Medicaid School-based Services Benefit Program, it does not require activity records to document equitable services. MMSD argues through its counsel it is not required to keep such records.
Prior to the re-authorization of the IDEA in 2004, a school district was permitted to meet its equitable services obligation by expending an amount of IDEA, state, or local funds equal to the proportionate share of IDEA funds required for equitable services. Since the 2004 re-authorization of IDEA, a school district is required to expend a proportionate share of IDEA funds on equitable services and may only supplement that amount with state and local funds. Because IDEA funds must be expended on equitable services, these expenditures are subject to the same documentation standards that apply to all expenditures of Federal funds.
MMSD seeks to establish the effort its employees devoted to providing equitable services during the 2006-2007 school year by calculating the proportion of parentally placed private school students assigned to each teacher. This method is not acceptable, as it is inconsistent with the long-standing standard established by the Office of Management and Budget (OMB) for the administration of Federal grant programs, including IDEA. State education agencies and local educational agencies must follow these standards in documenting allowable costs charged to Federal grant programs. OMB Circular A-87 Revised establishes principles and standards for determining allowable costs and promoting effective program delivery. Attachment B to OMB Circular A-87 Revised identifies standards for documenting selected items of cost, including compensation of personnel and provides in pertinent part as follows:
8.h. Support of salaries and wages. These standards regarding time distribution are in addition to the standards for payroll documentation.
(1) Charges to Federal awards for salaries and wages, whether treated as direct or indirect costs, will be based on payrolls documented in accordance with generally accepted practice of the governmental unit and approved by a responsible official(s) of the governmental unit.
* * *
(3) Where employees are expected to work solely on a single Federal award or cost objective, charges for their salaries and wages will be supported by periodic certifications that the employees worked solely on that program for the period covered by the certification. These certifications will be prepared at least semi annually and will be signed by the employee or supervisory official having first hand knowledge of the work performed by the employee.
(4) Where employees work on multiple activities or cost objectives, a distribution of their salaries or wages will be supported by personnel activity reports or equivalent documentation which meets the standards in subsection (5).... Such documentary support will be required where employees work on:
* * *
(b) A Federal award and a non Federal award,
* * *
(5) Personnel activity reports or equivalent documentation must meet the following standards:
(a) They must reflect an after the fact distribution of the actual activity of each employee,
(b) They must account for the total activity for which each employee is compensated,
(c) They must be prepared at least monthly and must coincide with one or more pay periods, and
(d) They must be signed by the employee.
(e) Budget estimates or other distribution percentages determined before the services are performed do not qualify as support for charges to Federal awards.... (Emphasis added)
The MMSD is directed to develop personnel activity reports or equivalent documentation consistent with Attachment B, OMB Circular A-87 Revised for its personnel providing equitable services to parentally placed private school students. Such reports from the beginning of the school year through the end of October 2007 must be sent to the department by November 30, 2007. Reports for the months of November and December 2007 must be sent by January 31, 2008. Reports for January, February, and March 2008 must be sent by April 30, 2008. April, May, and June reports must be sent by July 31, 2008.
For this complaint, the department accepted signed affidavits from teachers documenting their activities providing equitable services during the 2006-2007 school year. Based on the affidavits and hourly rates of service submitted by MMSD, a total of $75,814.24 was expended for equitable services during the 2006-2007 school year, $3,028.75 less than the total amount of funds required. A total of $1,429.35 was expended on itinerant vision services for four students, and a total of $74,384.89 on speech and language pathology services for 60 students. During the 2006-2007 school year, MMSD did not expend all of the funds required. The IDEA requires if a local educational agency (LEA) has not expended for equitable services all of the funds required by the end of the fiscal year, the LEA must obligate the remaining funds for such services during a carry-over period of one additional year. Therefore, MMSD must expend $3,028.75 of IDEA funds in addition to the amount it is required to expend on equitable services for the 2007-2008 school year.
A school district must have a services plan for each private school student it designates to receive equitable services. The school district must take steps to ensure parents are present at the meeting to develop the services plan. The services plan includes the services the district will provide to the student in light of the services it has determined, through the consultation process, it will make available to parentally placed private school students with disabilities.
The parents allege their childs services plan was not developed properly. They allege the plan was not reviewed with them. An individualized education program (IEP) team meeting was convened on March 1, 2007, to determine the childs continuing eligibility for special education services. MMSD staff, an orientation and mobility specialist, the parents, and private school representatives attended the meeting. The team determined the child continued to be eligible for special education services.
After a short break, a meeting was convened to revise a services plan for the child to receive itinerant vision services. The O&M specialist did not attend the services plan meeting. The LEA representative reviewed the school districts plan for providing equitable services. A draft services plan for the child, which includes itinerant vision services but not O&M training was distributed at the meeting. Because the school districts plan for providing equitable services does not include O&M training, the childs draft services plan did not include O&M training. The district is not required to include such training in its equitable services, regardless of whether the child needs such training.
The parents expected the meeting participants would discuss the districts equitable services and the possibility of the child receiving O&M training. The LEA representative refused to discuss the districts plan for providing equitable services and O&M training, suggesting a meeting at another time to discuss it. The parents left the meeting expecting another meeting. With a cover letter dated March 2, 2007, the parents received the childs final 2007-2008 services plan through the mail.
The childs services plan provides a reduced amount of itinerant vision services than was provided in the childs previous services plan. It is unclear whether the amount of itinerant vision services was discussed at the March 1, 2007, meeting. Some participants recall the amount of itinerant vision service being discussed; others do not. The parents state it was not discussed. The district is directed to offer the parents another meeting by November 2, 2007, to discuss the itinerant vision services in the childs services plan.
The parents allege the MMSD did not properly conduct consultations with representatives of private schools and parents of private school students with disabilities required by the IDEA. They state they have never been included in discussions with school district officials or other parents about how the school district will spend its IDEA funds for equitable services. Further, they state the MMSD did not consult with representatives of their childs private school about how the proportionate share for equitable services was calculated.
A school district must consult with representatives of parents of parentally placed private school children with disabilities on key issues that affect the ability of eligible private school children with disabilities to participate in special education services. A school district is not required to consult with all parents of parentally placed private school students with disabilities, only with representatives, about its plan to provide equitable services. The school district makes the final decisions about the equitable services it will make available. However, when a school district disagrees with the views of private school representatives about the provision of the services or the types of services the school district will provide, it must provide the private school representatives a written explanation of the reasons why the school district chose not to provide the services.
By letter dated September 13, 2006, the MMSD invited representatives of private schools located in the district and parent representatives from the schools to attend an October 12, 2006, meeting. The purpose of the meeting was to provide information and to conduct the required consultations concerning equitable services for parentally placed private school students with disabilities. Representatives of private schools and parents of private school students attended the meeting, which was conducted on October 12. All private school representatives consulted signed a form, titled Individuals with Disabilities Education Improvement Act Affirmation of Representatives of Participating Private Schools, in which they affirm MMSD engaged in timely and meaningful consultation required by the IDEA.
Although invited, representatives from the childs private school did not attend. By letter dated October 13, 2006, the MMSD contacted private schools that did not send representatives to the October 12 meeting, including the childs private school. Enclosed with the letter were the materials shared at the October 12 meeting. They include a document titled, Serving Children with Disabilities Placed by Their Parents in Private Schools October 2006. It refers to two documents that provide information on the calculation of the proportionate share of IDEA funds for equitable services.
One document includes the calculation of the proportionate share for the 2005-2006 school year and the other is an analysis of 2005-2006 school year equitable services. Serving Children with Disabilities Placed by Their Parents in Private Schools October 2006 states these are provided as examples and a copy of the 2006-2007 proportionate share information will be sent to private school representatives in the near future. By letter dated October 26, 2006, the MMSD provided representatives of private schools a document with the determination of the 2006-2007 proportionate shares of Federal funds available for equitable services.
The school districts October 2006 consultation materials also include a document, titled Private School Representatives and Representatives of Parents of Parentally Placed Private School Children with Disabilities Input Worksheet and a form, titled Individuals with Disabilities Education Improvement Act Affirmation of Representatives of Participating Private Schools. A representative of the childs private school completed the input form and returned it to the MMSD, along with a signed affirmation that the MMSD engaged in timely and meaningful consultation required by the IDEA. Both documents are dated October 22, 2006. The representatives input concerning the special education services to consider is entered in section 2 of the Input Worksheet. It reads Mobility for student with Vision Disability.
In a January 8, 2007, letter to representatives of the childs private school, the MMSD communicated the equitable services the school district would provide. The letter states, in part:
- Direct services to students in the area of Speech. This is limited to voice, fluency and articulation. These services will be provided by MMSD S/L clinicians at the MMSD public school which is close to the students school.
- Consultation services to staff in the areas of Vision Impairment (VI) and Hearing Impairment (HI). This service is provided by MMSD VI or HI staff at the students school.
Input obtained from private school administrators, staff, and parents remained in alignment with this decision. A few individual student suggestions felt (sic) outside this plan, however, this plan addresses the group of parentally placed private school children with disabilities with equitable participation services for the 2007-2008 school year. (Emphasis added)
As has been past practice this MMSD commitment exceeds the funding required via the IDEA/DPI obligation.
When the MMSD disagreed with the views of a representative of the childs private school about the provision of mobility training in January 2007, the MMSD should have provided a written explanation of the reasons why mobility training would not be provided. The January 8, 2007, letter informs the representative of the childs private school of the equitable services the school district will provide and notes a disagreement with some of the views expressed about equitable services. However, it does not inform the representative about the reasons why the school district chose not to provide mobility training. The MMSD addressed this error by sending a July 24, 2007, letter to the private school with an explanation of the reasons why it decided not to provide mobility training requested by the private school.
This concludes our review of this complaint.
//signed CST 10/10/07
Stephanie J. Petska, Ph.D., Director